"Hate crime" prosecution for flushing Koran down a toilet

[Bernard Bell]

Gene,

   I do not claim this is a rigorous response to your email or your
questions.  However, the parenthetical at the end of the first paragraph
of your last email made this arrest much more understandable to me. 
Essentially, it appears that the defendant removed a religious text from
a mediation room where it could be expected to be used by members of
that faith who desired to pray.  And it was not removed, for instance,
because someone needed the Koran for a school assignment and kept it for
some time to complete the assignment, but was removed to interfere with
religious worship, and essentially defaced, because of the defendant's
hatred of that religion. Intuitively, it does not seem to me that the
Free Speech Clause prohibits government officials from more seriously
punishing interference with religious practice via theft when one is
motivated by hate for the religion as opposed to some other purpose
(like the theft to complete a school assignment motive posited above). 
While the flushing of the stolen Koran makes this more offensive
(particularly if the defendant wished or at least knew that word of what
he had done would get back to Muslim students who might want to use the
mediation room), the critical act may well be the theft motivated by
animus toward Muslims (rather than what he did with the Koran
thereafter).  It is critical, it seems to me, that the harm that is
subject to penalty and is sought to be enhanced by the hate crime
statute be a harm to the person to whom the defendant is exhibiting
animus.  In the Pace case, the harm from the theft of the Meditation
Room Koran is to Muslim students who may wish to use the mediation room,
and the animus is toward Muslims.  In at least some of your
hypothetical, the person who is likely to be harmed by the underlying
criminal violation sought to be enhanced is not the person to whom the
defendant's animus is directed.  In hypo 2, the harm is the risk that
the fire might spread to the property of a nearby storeowner, but there
is no real indication that there is any animus toward the storeowner
based on race, color, etc.  The same may be true for hypos 3 and 5 as
well. 

Regards,

Bernie

Bernard W. Bell
Associate Dean for Academic Affairs & Faculty
Professor & Herbert Hannoch Scholar
Rutgers Law School-Newark
123 Washington Street
Newark, NJ 07102
(973) 353-5464 (voice)
(973) 353-1445 (fax)
bbell at kinoy.rutgers.edu


>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 7/30/2007 6:34:04 pm >>>
Well, let me be precise.  Imagine five hypotheticals, all of which
involve laws much like New York's, which mandates an enhancement for
"intentionally commit[ting] 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."  (By the way, let me
correct something I'd said earlier; I thought Shmulevich flushed his own
copy of the Koran -- a different news story I read reports that he stole
the Korans from the Pace University meditation room.)

	1.  Stanislav Shmulevich steals a Koran from Pace University,
puts it in the toilet, and covers it with feces. He is prosecuted not
just for the misdemeanor of damaging a book (which he seems to be guilty
of), but for a felony hate crime, because he is acting "because of a
belief ... regarding the ... religion ... of a person," there some
Muslims with whom he had been having an argument -- perhaps he thought
that the Muslims were bad because of their Islam, and he wanted to
blaspheme against Islam as a way of getting back at them. (Note that he
did not choose his victim because of the victim's religion; the victim
of the property damage is Pace University.)

	2.  Shawn Eichman comes to New York to burn another flag, which
he owns; but he burns it "recklessly" in a way that causes over $250 of
damage to a bystander's property (which is to say with the awareness
that his burning poses) a substantial and unjustifiable risk to such
property). He is prosecuted not just for the misdemeanor of recklessly
damaging property, but for a felony hate crime, because he is acting
"because of a belief ... regarding the ... race, ... national origin,
... or religion ... of a person." Say, for instance, he was burning the
flag to protest the lack of enough blacks or Hispanics in various parts
of the administration (race), to protest what he sees as various
Republican leaders' wrongheaded and excessive religiosity (religion), or
to protest what he sees as the misconduct of American troops (assume
that New York courts interpret "national origin" to include American
citizenship or participation in American isntitutions).

	3.  An artist creates a display with a cross covered in human
excrement, to protest what he sees as the historical crimes of
Christianity (or, if you prefer, the Catholic Church's actions with
regard to child molestation by priests). However, he does this on the
premises of a public housing project, and refuses to leave when the
public housing project authorities tell him to do so. Such failure to
leave is normally a third-degree criminal trespass, which is a class B
misdemeanor. But the artist is prosecuted for a class A misdemeanor
because he committed the acts because of a belief regarding the religion
of various Christians or Catholics against whom he is protesting.

	4.  A minister comes to the home of a local Episcopalian Church
leader to remonstrate against him because of the Church's willingness to
approve gay bishops. The leader at first grudgingly agrees to let the
minister enter and discuss the matter, but eventually demands that the
minister leave. The minister refuses to leave, which would normally make
him guilty of class A misdemeanor second-degree criminal trespass -- but
because the minister was motivated by a belief regarding the sexual
orientation of the confirmed bishops, the minister is prosecuted for a
felony hate crime.

	5.  Assume that New York law is revised to cover not just the
offenses that are now specified in the hate crime statute, but also any
other crime, such as blocking traffic and the like. This means that
anyone who acts illegally in the course of a protest motivated by
someone's race, religion, religious practice, sexual orientation, and
the like -- for instance, steps out on the street in a way that blocks
traffic, throws papers on the ground in violation of a littering
ordinance, and the like -- would be eligible for extra punishment
because of why he was protesting.

	Constitutionally permissible?

	Eugene

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu] 
> Sent: Sunday, July 29, 2007 5:41 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu 
> Subject: RE: "Hate crime" prosecution for flushing Koran down a
toilet
> 
> 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.
> > > > _______________________________________________
> > > > To post, send message to Conlawprof at lists.ucla.edu To 
> subscribe, 
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> > > >
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> > > > posted; people can read the Web archives; and list members can

> > > > (rightly or wrongly) forward the messages to others.
> > > >
> > > >
> > > >
> > > _______________________________________________
> > > To post, send message to Conlawprof at lists.ucla.edu To subscribe,

> > > unsubscribe, change options, or get password, see 
> > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 
> > >
> > > Please note that messages sent to this large list cannot be
> > viewed as
> > > private.  Anyone can subscribe to the list and read
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> > > posted; people can read the Web archives; and list members can 
> > > (rightly or wrongly) forward the messages to others.
> > >
> > >
> > >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu To subscribe, 
> > unsubscribe, change options, or get password, see 
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 
> >
> > Please note that messages sent to this large list cannot be 
> viewed as 
> > private.  Anyone can subscribe to the list and read 
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> >
> >
> >
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu To 
> subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 
> 
> Please note that messages sent to this large list cannot be 
> viewed as private.  Anyone can subscribe to the list and read 
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> messages to others.
> 
> 
> 
_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as
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