"Hate crime" prosecution for flushing Koran down a toilet

[Steven Jamar]

First off, let me say that on the facts as presented in the news
account I do NOT support sentence enhancement.  I do think it is
possible and would be proper to make certain speech hate speech and
exclude hate speech, like fighting works and obscene speech, from
protection under the first amendment.

But, not all speech that would be offensive or abusive or send a
message about dislike or disgust with certain things would qualify.
And I agree that the big danger with targeting hate speech criminally
is the likelihood of enforcement being arbitrary or targeting some and
not others and its potential for abuse in general.

So in none of the "hypos" Eugene poses would I support finding it
criminal hate speech, though the "piss-Christ" comes closest for me.
Additional comments follow interlined.

On 7/29/07, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
>         Well, it seems to me far from clear that Mitchell supports extra punishment not just for the act of choosing a target based on race, religion, etc., but for the message that the actor is trying to communicate, and the offense that he is trying to cause.
>
>         But let me ask Larry and others who agree with him what they would do with these examples:
>
>         (1)  Someone burns a flag.  He is prosecuted for violating a law that bars the burning of objects in high fire danger zones; assume he is guilty of that.  But instead of this being a petty misdemeanor, he gets jail time as a sentence enhancement, because he was burning a flag, and because this was seen by the state as creating an extra social harm of offending people, desecrating an important national symbol, etc.
>

Burning the flag is the proper way to dispose of it. So this sort of
prosecution really is targeting the speech, isn't it?  In addition,
the actor is not targeting an insular, politically powerless group
already subject to all sorts of harassment and oppobrium.  It is
targeting the government, assuming that there is even evidence of the
intention to send a message of hate as opposed to straight up protest.
 The intention would always matter, not just effects.


>         (2)  Someone puts up an art installation with a crucifix in urine or excrement.  He is prosecuted for violating a law that bars the placement of human waste in public places; assume he is guilty of that.  But instead of this being a petty misdemeanor, he gets jail time as a sentence enhancement, because he was desecrating a holy object (assume it's one that belonged to him), and because this was seen by the state as creating an extra social harm of offending people, arousing religion-based antagonism, making members of certain religious groups feel put upon, and so on.
>

This one was always closer for me.  How about Paris, Britney, Madonna,
and others wearing the cross as jewelry -- very offensive to some.
Here the intent is clearly to comment on Christianity in a
particularly offensive way.  It seems to me that if the state wanted
to reach this conduct it would need to do so directly, and not through
a "mere" penalty enhancement.

Again, it is conduct not targeting a vulnerable or powerless group.

>         (3)  Someone posts on a telephone pole Communist propaganda expressing hatred of capitalism and capitalists, and praising violent revolution.  He is prosecuted for violating a law banning attaching things to city-owned telephone polls.  But instead of this being a petty misdemeanor, he gets jail time as a sentence enhancement, because he was expressing a hateful view, and one that creates an extra social harm of offending people, creating an atmosphere in which people fear violence, and exacerbating social divisions.
>

This is straight-up political speech, targeting "everyone" and
everything.  No particularly group is targeted by the speech.

Furthermore, the person being prosecuted is one of a "despised minority."


>         (4)  Someone who is engaged in a stridently anti-Chinese "freedom for Tibet" demonstration in front of the Chinese consulate, is standing on the street, without a permit to demonstrate in the street.  He is prosecuted for blocking traffic.  But instead of this being a petty misdemeanor, he gets jail time as a sentence enhancement, because his speech was seen by the state as creating an extra social harm of offending people, potentially causing friction with the Chinese government (cf. the dissent, and Judge Bork's lower court opinion, in Boos v. Barry), and making some Chinese feel put upon and unfairly singled out in ways that they feel are ethnically bigoted.
>

No enhancement.
Easy case.

>         I take it that in all these situations, the view of those who support the sentence enhancement for Smulevich would be that enhanced penalties are perfectly constitutional, right?
>
>         Eugene
>
>
> Larry Rosenthal writes:
>
> > 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
> >
> > ________________________________
> >


-- 
Prof. Steven Jamar
Howard University School of Law