Glittering: "assault" or "wonderfully fabulous way to protest"?

Diane Anderson-Minshall, executive editor of The Advocate, the gay news magazine, says throwing metallic flecks in someone's face is a "wonderfully fabulous way to protest": "It's peaceful and it doesn’t hurt anybody. But it does get a really important point across in a fun way."

Newt Gingrich, who's been on the receiving end of this supposedly "fun" protest, says: "Glitter bombing is clearly an assault and should be treated as such... When 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.”

The NYT tries to get a legal opinion by asking First Amendment lawyer Floyd Abrams:

"I don’t think you’d get much disagreement that like so much else in the law, it’s all a matter of degree... Touching someone’s body can be criminal. But it’s awfully unlikely that there would be a prosecution if it’s just a bit of glitter. But in theory, the more that’s dropped, the more likely is prosecution."

That's a pragmatic assessment from the point of view of police and prosecutors, not an opinion about whether it is a crime. Did Abrams address the point of view of the recipient of the attack (as Gingrich did, above)? If someone rushes at you and makes gestures of attack, but it turns out to be only glitter, you still have the fear, and you (or your bodyguards) don't know what is about to happen. Then maybe it's funny to laugh at the person who felt the fear or overreacted. And there they are covered in glitter. Ha ha.

This is like the childhood game of taking a swat at someone, without hitting him, and then hooting "You flinched!" In that childhood game — is it still played? — if the person flinched, you then have the right to punch him in the arm. Hard. But imagine adults playing with each other that way. Or would life work better? Justice Bradley charges right up to Justice Prosser, gets in his face, with fists flying but not touching him, and he flinches/touches. Well, then Justice Bradley immediately has the right to punch Prosser — hard — in the arm. And that's the end of it. Instead... oh, lord!... the troubles we have in Wisconsin!

(And here's that thread from last month where we talked about pie-throwing and where, in the comments, there was some extensive discussion of glittering.)