"Hate crime" prosecution for flushing Koran down a toilet

Rosenthal, Lawrence rosentha at chapman.edu
Sun Jul 29 11:01:56 PDT 2007


Fair point about Parker v. Levy (or Brown v. Glines), although the limits of those holdings are far from clear.  In any event, the potential differences in First Amendment protection for members of the military illustrates the perils of hypotheticals.  So, let me stick to Smulevich's case.
 
We know very little of the facts of the from the brief article, but we do know that the People believe that they can prove beyond reasonable doubt that the books were desecrated by Smulevich, and that they can prove Smulevich's animus beyond reasaonable doubt.  This suggests to me that Smulevich was not engaged in some sort of private ritual; he was probably taunting Islamic students.  (I also doubt that he was desecrating his own books, but I doubt that this matters for constitutional purposes, although a jury might be more sympathetic to him if that turns out to be true)
 
The First Amendment protects "speech," not "motive."  The protection for speech, at least arguably, supports R.A.V.'s holding that criminal laws that make a form of expression a basis for enhanced punishment are unconstitutional.  But Wisconsin v. MItchell is clear that when enhancement is based on motive, there is no First Amendment protection, since the legislature is free to conclude that certain motives warrant an extra measure of punishment or deterrence.  Surely taunting fellow students based on their religious preference, in our society, qualifies as a circumstance in which the legislature could think additional punishment or deterrence is warranted.  Nothing in MItchell requires that the motive be directed toward a particular individual in order to survive constitutional attack -- although it may well be the case that a discrete group of Islamic students were the intended targets of Smulevich's acts.  
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sun 7/29/2007 8:44 AM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet



        I'm not sure how much help military examples give us -- the federal government may punish soldiers who harshly criticize the war, see Parker v. Levy, and otherwise restrict soldier speech in ways it can't do to ordinary citizens.  It would likely even be able to punish Marines even for simply saying what would otherwise be constitutionally protected things during an interrogation -- or for that matter ripped up a Koran without jeopardizing any plumbing, which I take it everyone would agree would be constitutionally protected when done by an ordinary citizen (right?).  So it seems to me that we should stick with hypotheticals that don't involve the military (or, for instance, the government acting as employer restricting speech that would be restrictable under Pickering).

        Eugene

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Saturday, July 28, 2007 10:32 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet
>
> Does the First Amendment permit the government to treat the
> Marines who, at least on some accounts, may have maliciously
> desecrated a Koran as part of an interrogation technique more
> harshly than Marines who, say, maliciously damaged a cookbook
> during an interrogation?  I think it does -- because of the
> special dangers that Mitchell tells us are posed by
> bias-motivated crimes.  Those dangers are surely present when
> the bias is reflected in the manner by which the defendant
> chose his victim, but they are present as well whenever the
> defendant's acts reflect bias against an entire class of
> people -- and in this case the defendant's acts reflect his
> bias against all who adhere to Islam.
> 
> Larry Rosenthal
> Chapman University School of Law
>
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Sat 7/28/2007 9:02 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet
>
>
>
>         (1)  Just to be clear, my sense is that the property
> of another was the toilet, not the Koran; Shmulevich risked
> damaging the university's toilet by flushing down his own Koran.
>
>         (2)  Mitchell rested in part on the theory that
> "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." 
> Here, Shmulevich isn't having his punishment being increased
> because of how he chose his victims.  He's having it
> increased solely because of the content of the book that he
> was flushing down, and because of the blasphemous message
> that he was sending through destroying that particular book
> that he owned.  (Presumably he would have sent the same
> message if he'd ripped off several pages and flushed them
> down, something that wouldn't have damaged the university's property.)
>
>         (3)  So the motive here isn't "discriminatory" in the
> sense of being a motive to treat someone differently because
> of his race, religion, sex, etc.  Rather, it's simply the
> motive to express hostility to a particular ideology (a
> religious one).  Does Mitchell allow the government to
> enhance punishment for nonspeech crimes when they send a
> message of hostility to a particular ideology, religion, or
> ethnicity?  May the government indeed punish illegal burning
> much more severely if it involves the burning of an American
> flag (which, to many, conveys a message of hostility to
> America or at least to dominant American beliefs and
> practices)?  May the government punish, say, deposit of feces
> or urine in a public place if it involves someone's creating
> a display of a crucifix covered with urine, or the Virgin
> Mary covered with feces?  Or may it do so only if it can show
> that it creates some "special dangers" (say, danger of
> greater religious tension, as with the crucifix, or danger of
> violent retaliation, as with the burning flag, or danger of
> greater hostility between Left and Right, if the flagburning
> is part of a pattern that sows such hostility)?  I realize
> that Mitchell allows some enhancement based on motive -- but
> does it really allow the government to impose greater
> punishment in all these cases, because the motive is to
> express offensive and hostile ideas?
>
>         Eugene
>
> > -----Original Message-----
> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> > Sent: Saturday, July 28, 2007 8:25 PM
> > To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > Subject: RE: "Hate crime" prosecution for flushing Koran
> down a toilet
> >
> >
> > 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--vanda
> > lismquran0727jul27,0,6882662.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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