"Hate crime" prosecution for flushing Koran down a toilet

[Rosenthal, Lawrence]

I am afraid that I do not grasp why Wisconsin v. Mitchell is not a sufficient answer to a First Amendment objection.


Mr. Smulevich violated a perfectly constitutional criminal law by damaging the property of another.  Mitchell holds that when one engages in such unprotected conduct, the First Amendment permits enhanced punishment based on a discriminatory motive such as religious animus.  That is because bias-motivated crime is thought to pose special dangers and therefore the legislature can properly determine that it warrants an extra measure of deterrence:



		Mitchell argues that the Wisconsin penalty-enhancement statute is invalid because it punishes the defendant's discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. Title VII, of the Civil Rights Act of 1964, for example, makes it unlawful for an employer to discriminate against an employee "because of such individual's race, color, religion, sex, or national origin." In Hishon, we rejected the argument that Title VII infringed employers' First Amendment rights. And more recently, in R.A.V. v. St. Paul, we cited Title VII (as well as 18 U.S.C. 242 and 42 U.S.C. 1981 and 1982) as an example of a permissible content-neutral regulation of conduct. 


		Nothing in our decision last Term in R.A.V. compels a different result here. That case involved a First Amendment challenge to a municipal ordinance prohibiting the use of "`fighting words' that insult, or provoke violence, `on the basis of race, color, creed, religion or gender.'" Because the ordinance only proscribed a class of "fighting words" deemed particularly offensive by the city - i.e., those "that contain . . . messages of `bias-motivated' hatred," we held that it violated the rule against content-based discrimination.  But whereas the ordinance struck down in R.A.V. was explicitly directed at expression, the statute in this case is aimed at conduct unprotected by the First Amendment. 


		Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness."  



508 U.S. at 487-88 (citations omitted). This rationale applies, it seems to me, even though the book belonged to the University and not an individual victim. Malicious destruction of a Koran surely poses special dangers even when it belongs to a university rather than an individual victim.  And, as far as I can tell, the New York statute makes enhancement turn on the defendant's motive rather than any expressive component of the crime, which would be impermissible under R.A.V.  One can question the integrity of the Court's distinction between enhancement based on unprotected expression and enhancement based on motive, but that is the line the Court has chosen to draw.


Larry Rosenthal


Chapman University School of Law


________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sat 7/28/2007 2:59 PM
To: CONLAWPROF at lists.ucla.edu
Subject: "Hate crime" prosecution for flushing Koran down a toilet



http://www.newsday.com/news/local/wire/newyork/ny-bc-ny--vandalismquran0727jul27,0,6882662.story

"A 23-year-old man was arrested Friday on hate-crime charges after he threw a Quran in a toilet at Pace University on two separate occasions, police said.

"Stanislav Shmulevich of Brooklyn was arrested on charges of criminal mischief and aggravated harassment, both hate crimes, police said. It was unclear if he was a student at the school. A message left at the Shmulevich home was not immediately returned.

"The Islamic holy book was found in a toilet at Pace's lower Manhattan campus by a teacher on Oct. 13. A student discovered another book in a toilet on Nov. 21, police said...."

        Surely deliberately flushing any book -- or other object that's likely to cause a clog -- down another's toilet should indeed be a crime.  But the question is whether it can be turned into a more serious crime (in New York, raised to "one category higher than the specified offense the defendant committed") because the book is a religion's holy work and the act is thus intended to insult that religion.  I take it that it would be unconstitutional to take a perfectly valid sentence for burning objects in a fire danger area and enhance it when the burnt object is a flag, or when the intention of the burning is to offend or insult people because of their country of citizenship.  Is this any different?

        Note that, unlike in Wisconsin v. Mitchell, Shmulevich isn't being prosecuted for selecting a victim because of the victim's race, religion, and the like (which would be the case under N.Y. Penal Law sec. 485.05(a)) -- the victim is Pace University.  Rather, the relevant law (N.Y. Penal Law sec. 485.05(b)) provides (emphasis added), "A person commits a hate crime when he or she commits a specified offense and .... intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of *a person*, regardless of whether the belief or perception is correct."  That person need not be the victim of the crime (again, that would be covered under sec. 485.05(b)).  Any thoughts on this? 

        Relatedly, I don't see how "aggravated harassment" would cover this conduct; I include the relevant statutory provisions at the end of this message.  What am I missing?

        Thanks,

        Eugene





§ 240.30 Aggravated harassment in the second degree


A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:


1. Either (a) communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or


(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or


2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or


3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or


4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years.


Aggravated harassment in the second degree is a class A misdemeanor.


§ 240.31. Aggravated harassment in the first degree


A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she:


1. Damages premises primarily used for religious purposes, or acquired pursuant to section six of the religious corporation law and maintained for purposes of religious instruction, and the damage to the premises exceeds fifty dollars; or


2. Commits the crime of aggravated harassment in the second degree in the manner proscribed by the provisions of subdivision three of section 240.30 of this article and has been previously convicted of the crime of aggravated harassment in the second degree for the commission of conduct proscribed by the provisions of subdivision three of section 240.30 or he or she has been previously convicted of the crime of aggravated harassment in the first degree within the preceding ten years; or


3. Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property; or


4. Sets on fire a cross in public view.


Aggravated harassment in the first degree is a class E felony.
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