"Hate crime" prosecution for flushing Koran down a toilet

[Volokh, Eugene]

	Well, if someone finds it to be even a close case whether people
should be free to wear crosses in supposedly blasphemous way -- or
thinks that First Amendment protection should turn on whether the
commentary is insulting to a supposedly "vulnerable or powerless" group
-- then I'm pretty sure that our views on the First Amendment are so
different that I doubt we'll persuade each other.  

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
> Sent: Sunday, July 29, 2007 3:51 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: Re: "Hate crime" prosecution for flushing Koran down a toilet
> 
> 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
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