So is this prosecution legally permissible? To begin with, note that posting the pictures, or even taking the pictures, can’t itself be a crime; even setting aside the First Amendment, that wouldn’t constitute “[d]efacing, damaging, polluting or otherwise physically mistreating the statue.” But posting the pictures is indeed evidence of a physical act connected with the statue — climbing on it and posing oneself in a particular way on it.
Note also that the law isn’t limited to religious objects — besides the specifically enumerated public monuments or structures and places of burial, the “object of veneration” language likely includes flags and other respected political symbols. Indeed, Texas v. Johnson, the Court’s flagburning case, involved a “desecration of venerated object” statute.
The legal questions, it seems to me, are these:
1. Is posing with a statue in a vulgar way — a way likely to “outrage the sensibilities of persons likely to observe or discover the action” — while physically contacting the statue “physical mistreat[ment]”? I’ve looked, and I could find no caselaw on the subject.
2. If the answer is, “it’s hard to tell,” is the law unconstitutionally vague as applied in this case? Also hard to tell, given that vagueness doctrine is itself vague.
3. Does the law, either on its face or as applied here, violate the Free Speech Clause? To answer that, we’d need to know what the law means.
a. On its face, the law seems to cover a person’s desecrating objects that he owns — for instance, defacing, damaging, or for that matter simulating a sex act with a flag, a Bible, a Koran, or whatever else. (One might argue that a flag that has never been publicly seen before isn’t itself an “object of veneration by the public,” even though it belongs to a class of identical-looking objects that are objects of veneration; but even so, the law would apply to a person flying the flag for a while on his property, and then burning it.) If the law is so read, then it is unconstitutionally overbroad under Texas v. Johnson, since it punishes symbolic expression because of the offensive message the expression sends. And if the law is unconstitutionally overbroad, then it can’t be applied even to conduct that could be punished under a narrower law.
b. What if the law is interpreted as being limited to others’ property, something that the text doesn’t suggest but that might be read into the law on the general background legal principle that people are usually presumed to have the right to do what they please with their own property, coupled with the principle that laws should be read to avoid constitutional problems? There, the issue is different.
There definitely is no First Amendment right to trespass on others’ property for expressive purposes (with a narrow “company town” exception that is not relevant here). But this law doesn’t generally ban all trespasses (even if one were to treat touching a statue that seems to be on an unfenced lawn of an institution as a trespass, which it might be on the theory that it exceeds any permission that the property owner is giving for public access). Rather, if the “physically mistreating” clause is read to mean “engaging in symbolic expression with an object in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover the action” — including when the outrage stems precisely from the behavior being pantomimed — the law is punishing only trespasses that are engaged in for expressive purposes, and that convey a contemptuous or insulting message.
The government interest here appears to be preserving from “outrage” “the sensibilities” of potential observers or discoverers, and (in the words of Texas v. Johnson) this “concern blossoms only when a person’s treatment of the [object] communicates some message” — and “thus [is] related ‘to the suppression of free expression’ within the meaning of [United States v. O’Brien].” After all, if the defendant was posing with the statue respectfully, such as kneeling in front of it and kissing its hand, the law wouldn’t be triggered. If this analysis is right, then the law isn’t just a prohibition on a certain form of trespass, but is a content-based prohibition on trespass.
The question then would be whether this sort of content-based prohibition on a subset of constitutionally unprotected conduct (trespass) is permissible under R.A.V. v. City of St. Paul (1992). Unfortunately, that, too, is a pretty vague legal rule, sorry to say.
c. Note that the law also covers government-owned monuments standing in traditional public fora (such as parks and sidewalks). I think that the government can prohibit climbing on such a monument, or even touching the monument, even when the monument is in a traditional public forum. But may the government prohibit only that touching of a government-owned monument that outrages public sensibilities, including outraging such sensibilities by the conduct being pantomimed?
4. Finally, does the law violate the Establishment Clause, by specially protecting religious symbols from contemptuous treatment? I doubt it, given that it applies to such symbols as just a subset of symbols that are venerated, whether for religious reasons, political reasons (flags), personal reasons (places of burial), or cultural reasons (monuments to various worthies, political or otherwise).
[This sentence constitutes the obligatory statuary rape joke.]