"Hate crime" prosecution for flushing Koran down a toilet

[Malla Pollack]

The difference between hitting someone because you hate them and flushing a
book in the privacy of a bathroom is the absence of a face-to-face targeted
human. No "fighting words" as no person facing you in position to start a
fight.  

Much of this discussion reinforces my belief that antidiscrimination law is
way off course because it focus on animus.  

Disparate impact is the key -- not intent. Besides all the other arguments
in favor of anti-subordination (not anti-classification) basis for
discrimination law, this discussion provides another -- less likely to send
free speech tumbling down a slippery slope.

Malla Pollack
Professor, American Justice School of Law
mpollack at ajsl.us
270-744-3300 x 28
articles http://works.bepress.com/malla_pollack/
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Robert Sheridan
Sent: Sunday, July 29, 2007 9:50 AM
To: Steven Jamar
Cc: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
Subject: Re: "Hate crime" prosecution for flushing Koran down a toilet

As I understand the facts, someone from the Pace U. campus in  
Brooklyn came across a copy of the religious text in a toilet, put  
there, it is discovered by S.

As demonstrations go, this seems fairly contained, if not private.   
We are not told anything about motive or intent except what we'd like  
to read into the inkblot, which says more about us than S's act.

Let's say that S regarded the document as trash deserving of the  
commode.  He's entitled to hold that opinion.  Assuming the printed  
material belonged to him and that he was not trying to clog the  
plumbing, he was entitled to do what he did, assuming he had a right  
to be on campus in the first place.

One of the key components of the First Amendment is that each of us  
is free to formulate our own beliefs, which includes what we admire  
and what we hate, which we are protected in expressing, even if this  
makes others' skin crawl.  Can't do nuthin' bout that.  It's the  
price of having a First Amendment, as a few people tried to explain  
to Muslims outraged over the Mohammed cartoons and to Jews over Nazis  
marching in Skokie.

I'm not sure that a statute that seeks to protect against hurt  
feelings among Muslims, Jews, Christians, and all other, based on  
criminalizing expression alone, stands much chance of surviving a FA  
challenge, unless I'm missing something important.  Wasn't this the  
point of the flag-burning case, Texas v. Johnson?

rs
sfls


On Jul 29, 2007, at 5:43 AM, Steven Jamar wrote:

> 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
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