"Hate crime" prosecution for flushing Koran down a toilet

[Robert Sheridan]

Legislatures act surgically about as often as we drop bombs surgically.

The former Soviet Union had laws forbidding, on pain of gulag  
visitation, speech (and conduct) that was considered...what was the  
term...offensive to any of the many, many component ethnic and  
religious groups comprising the empire.  The gulag archipelago was  
quite large, I believe.  Anti-Soviet agit-prop?

While I could certainly use clarification on where lines are drawn  
between protected expression and criminalized hate speech, I do think  
we need to be very cautious in establishing invisible lines that  
even, or especially, conlawprofs have difficulty discerning, much  
less a layman who in anger or frustration tears up a book or makes  
fun of someone else's object of reverence.  In this regard, over  
Memorial Day I attended the commemoration at the Presidio of San  
Francisco, the former military reservation which contains a national  
cemetery, which had some lighter elements among the more somber.  One  
older woman was outfitted in red, white and blue, all over, like the  
flag.  A large VFW type wore a T-shirt made to look like the stars  
and bars.  I wouldn't risk burning a shirt like that in front of the  
man, because to him, I'm convinced, he was wearing the American flag  
and was prepared to die for it, Texas v. Johnson or no Texas v. Johnson.

I'd thought we'd established, or tried to, anyway, a comfort zone  
around protected rights to avoid unwitting violations.  I'm not sure  
I'm seeing that here.

rs
sfls


On Jul 29, 2007, at 5:41 PM, Rosenthal, Lawrence wrote:

> As I understand the line between Mitchell and R.A.V., enhancement  
> may be based on motive but not on an an expressive component of an  
> offense, then R.A.V. forbids enhancement, but if the statutory  
> trigger for enhancement is motive, then enhancement is permitted.   
> Professor Volokh does not tell us what the relevant statutes say in  
> his hypotheticals, but to the extent that he is hypothesizing  
> statutes that use some variant of "giving offense to others" as the  
> trigger for enhancement, then I believe that enhancement would be  
> precluded by R.A.V.  If, however, the statutory trigger for  
> enhancement is the defendant's motive, then I take it that  
> enhancement is permitted unless the defendant can prove pretext  
> under the principles articulated in Wayte v. US
>
> Beyond that, while I am happy to agree that sentencing enhancements  
> should not be used as a vehicle for viewpoint discrimination, at  
> least absent pretext (which may well be present in some of the  
> hypotheticals), I see no problem with limiting enhancement to those  
> offenses in which special social harms flow from the offense.  I  
> think it anomalous to conclude that the only way that the  
> government can generate adequate deterrence for conduct that poses  
> special social harms and requires special deterrence, such as crime  
> motivated by religious animus, is by increasing penalties on all  
> such crimes.  Shouldn't the legislature be free to act surgically,  
> enhancing punishment only for the subset of offenses that pose  
> special dangers, rather than being put to an all-or-nothing choice  
> on enhancement?  Do we really need to treat as felons all persons  
> who damage books merely because only a few (those who desecrate  
> holy books) threaten to produce broad social strife?
>
> Larry Rosenthal
> Chapman University School of Law
>
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Sun 7/29/2007 3:00 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet
>
>
>
>         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.
>
>         (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.
>
>         (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.
>
>         (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.
>
>         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
>>
>> ________________________________
>>
>> 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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>>>>
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>>>
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