"Hate crime" prosecution for flushing Koran down a toilet

[Mae Kuykendall]

If you increase a relatively minor, even trivial, offense, such as
destruction of property or clogging a toilet, to something much more
serious based on a motive seemingly revealed by the communicative
content of the underlying offense, the real offense seemingly has become
the disapproved message itself.  In such an instance, the worrisome
aspect of hate crime legislation seems at its most marked.  Suppose a
jaywalker gets a greatly enhanced charge for carrying a sign that says,
"I hate Group X"?  Would a greatly enhanced penalty be allright under
the First Amendment?

Mae Kuykendall




>>> "Steven Jamar" <stevenjamar at gmail.com> 7/29/2007 8:43:32 AM >>>
The motive is not to express hostile and offensive ideas, but rather to
harm
others in a particular religious group.

This line may not be a particularly good or sensible one, but the
result
here does, it seem to me, depend upon how one characterizes the action
and
what the proof is.

If the act was purely one of speech to express dislike for the
teachings of
a particular religion, then it seems Prof. Volokh's discomfort is well
warranted.

But if the act is to express hatred toward a particular group, then it
seems
that the state can regulate that for the reasons stated in the
material
quoted by Prof. Rosenthal.

And that turns on circumstances and proof of subjective intent
sufficient to
satisfy the DA and the jury and the judge.

Steve



-- 
Prof. Steven Jamar
Howard University School of Law