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Koran-Flushing and the First Amendment



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I’ve gotten several questions about Sunday’s Corner post from Mark Steyn reporting that hate crime charges have been filed against a student who threw a Koran into a toilet.  Mark contrasts this arrest with the left-wing world’s celebration of such works of art as “Piss Christ” (where a crucifix was submerged in urine).  Little Green Footballs labels the arrest its “outrage of the week.”  So does the student have a First Amendment defense?  Doesn’t the constitution protect Koran desecration just as it protects flag-burning, crucifix-desecration, and dung-covered and pornographic images of the Virgin Mary?    

There is no question that the Koran does not receive any special protection under the law that the Bible, the Torah, or (from a secular perspective) the American flag doesn’t receive.  A person can take a jug of toilet water and pour it over the Koran at a public demonstration.  A person could do all the obscene things to the Koran that radical secular leftists have done to the Christian religious images.  A person does not, however, have the right to stop up a university toilet.  Whether you’re drop a bowling ball, a copy of Moby Dick, or a holy book into a toilet, you don’t have a right block someone else’s bowl.   

But how is that a “hate crime?”  A hate crime is generally only constitutional if it is an aggravating circumstance to another, underlying crime.  For example, if someone angrily called me a “cracker” (I’m a rural white southerner who follows NASCAR), that’s not a hate crime.  It may be rude and annoying, but it is not a hate crime.  But if someone starts physically beating me and shouting, “I hate crackers,” then I may be the victim of a hate crime.  The beating (an act of assault) is the underlying crime.  For example, the controversial federal hate crimes bill purports to apply only to crimes that were already “crimes of violence” and “felonies” under state law (whether that will be its actual effect is a debate for another time).   

After looking at the relevant provisions of the New York State Penal Code for “criminal mischief” and “aggravated harassment“, it looks as if the first charge is more or less a standard vandalism charge, while the second requires some evidence of either damage to “religious premises,” or physical violence or a threat of violence on the basis of race, gender, religion, etc. to be actionable.  Unless there are additional facts in the case, the mere act of Koran-flushing is neither an act of violence nor a threat of violence.  If the Koran-flushing were part of an on-going campaign of stalking or harassment of a particular person, then it may be aggravated harassment.  There is much we don’t know.   

This is a long way of saying that we should reserve judgment on the case.  Because of the act of vandalism (blocking a university toilet), this is not a pure expression case.  And we don’t know all the underlying facts to determine if the harassment charge is appropriate.  But this will be an interesting case to see how “hate crimes” are defined and prosecuted. 

       



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