Is "Glitter-Bombing" Criminal Assault?

Over the past few years, marriage equality activists have conjured a new form of protest known as “glitter-bombing.” To protest the lack of equal rights for LGBT individuals, some activists employed the novel tactic of showering homophobic politicians with pink or rainbow-colored glitter. Recent victims of glitter-bombing have included Republican candidates Mitt Romney, Newt Gingrich, Tim Pawlenty, Rick Santorum, and Ron Paul. Prominent supporters of gay rights, including Senator Joe Lieberman and writer Dan Savage, have also been glitter-bombed because some LGBT activists felt that their support for the cause does not go far enough.

Though glitter-bombers are using this tactic as a form of political expression, it is clearly not protected by the First Amendment because it is not pure speech – it is conduct involving a physical activity with an object in relation to another person.  One person throwing an object towards another person might implicate the civil and criminal charges of assault and battery. Though social conservatives often accuse the marriage equality movement of forcing judges to “redefine marriage," thanks to “glitter-bombing” the marriage equality movement might force criminal law practitioners to redefine the charge of “assault.”

The common law charge of assault consists of 1) an act with intent to cause a harmful or offensive contact with a person, or an imminent apprehension of such a contact; and 2) the other person is thereby put in such imminent apprehension.

Former Arkansas Governor Mike Huckabee has suggested that glitter-bombers should be arrested, “[t]hat’s an assault.  It’s one thing to yell at a candidate, you never put your hands on him, you don’t touch him.”

“Glitter bombing is clearly an assault and should be treated as such,” recent victim Newt Gingrich explained, “[w]hen someone reaches into a bag and throws something on you, how do you know if it is acid or something that stains permanently or something that can blind you?  People have every right to their beliefs but no right to assault others.”

In February 2012, college student Peter Smith threw glitter at Mitt Romney while at a campaign rally in Denver.  Romney’s Secret Service detail pulled him away from the stream of glitter just in time to avoid contact, and within a moment the candidate resumed shaking hands with supporters.  Denver police pulled Smith away and held him in handcuffs for five hours.  Peter Smith now faces misdemeanor charges of throwing a missile, creating a disturbance, and an unlawful act on school property.  If convicted, Smith might face up to a year in prison and up to $1,000 in fines.  To date, he remains the sole glitter-bomber to be charged with a crime.

Nick Espinosa, the Minnesota protester who conducted the first glitter-bombing of Tim Pawlenty, and later glitter-bombed Mitt Romney and Newt Gingrich in that state, has also expressed his ire by throwing more solid, potentially-injurious objects.  At a campaign event in 2010 Republican gubernatorial Tom Emmer proposed new minimum wage laws to make servers’ tips count against their minimum wage, and Espinosa threw a bag of pennies at the candidate.  If you watch the video, Emmer appeared to be visibly fearful of the objects hurtling towards him.  After all, if thrown with sufficient velocity at someone’s face, pennies can cause serious injury.

Though it might seem harmless, a person could possibly suffer significant bodily injury from a glitter bomb.  According to optometrist Stephen Glasser, “If it gets into the eyes, the best scenario is it can irritate, it can scratch.  Worst scenario is it can actually create a cut.  As the person blinks, it moves the glitter across the eye and can actually scratch the cornea.”

Likewise, it makes sense for the law to prohibit persons from throwing objects at others, especially public figures and candidates for elected office.  In a nation with a long history of assassinations and assassination attempts, it is clearly in the public interest to discourage people from throwing objects at political figures.  In the split seconds between a protestor flinging glitter and confetti at a presidential candidate and it making contact with the candidate’s suit, it is difficult for the recipient to discern whether it is a serious attempt on their life or just a prank.

Conversely, the fact of the matter is that glitter is not a deadly weapon - it is just many little pieces of lightweight plastic.  When all is said and done, the worst that a glitter-bombing victim has suffered is the annoyance of having to brush pieces of glitter from their hair and suit jacket.  In a time of cash-strapped state budgets and overcrowded prisons, prosecuting a glitter-bomber with criminal charges might be an abject waste of prosecutorial resources.  Moreover, no aspiring Commanders in Chief who might one day have to deal with ballistic missiles from North Korea or Iran would want to appear petty or emasculated by testifying at the criminal trial of a glitter-bomber.

When Espinosa glitter-bombed Gingrich at a book signing in May 2011, Gingrich reportedly smiled as he brushed glitter and confetti from the table and muttered, “[n]ice to live in a free country.”

(Originally posted in the WCL Criminal Law Brief Blog)