"Hate crime" prosecution for flushing Koran down a toilet
VOLOKH at law.ucla.edu
Sat Jul 28 21:31:56 PDT 2007
Burning a flag often reflects hate -- OK to punish a flagburner who
violates a valid law banning burning things in certain places more
because he's burning a flag? Say someone posts expressions of hatred
toward America, capitalism, our troops, President Bush, Jerry Falwell,
fundamentalist Christianity, Christianity, or religion generally on a
telephone pole -- and say that posting things on a telephone pole is
normally a petty offense; OK to raise that to a jailable misdemeanor
because the speaker is motivated by hate?
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, July 28, 2007 3:59 PM
To: conlawprof at lists.ucla.edu
Subject: Re: "Hate crime" prosecution for flushing Koran down a
Can motive ever make an otherwise legal act illegal? Sure. The
hammer, screwdrivers, wrenches, and other tools I carry in my car can
suddenly become "burglary tools" if used in a certain way or if carried
with the intent to use them in that way.
Killing someone by accident is different from doing so with
intent or malice.
Why would a motive of hate not be an acceptable one to consider
in intent or severity of a crime?
If we limit certain kinds of speech on the basis of the content
of the speech and of the intent and circumstances when made, why not
conceptually include hate speech as one of the circumstances and
intentions that changes what might otherwise be protected speech to
But, the problem with any such sort of speech limitation is that
it can quickly and easily get out of hand both in the hands of
legislators and in the hands of those enforcing it.
The abuse by law enforcement is a real and serious concern -
even with the best of motives.
This strikes me as a curious case for a hate crime per se on the
theory that it seems to be brought. But it seems to me that one could
make it a crime to desecrate religious works either absolutely or
contextually ( e.g., publicly). It doesn't seem that this conduct is
really covered by the statute, however.
What about Pace? If this was a student, could it discipline him
for this sort of disrespectful conduct? Or must the conduct be
targeting a particular individual? Or can it be this sort of group
disrespect? Surely Pace or other private schools can require some
minimal level of civil conduct.
Prof. Steven Jamar
Howard University School of Law
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