Minnesota Prosecutors Decline to Charge Man for Posting Anti-Islam Cartoons Outside Mosque, Somali-Owned Store, and Other Places

The St. Cloud Times reports, and includes the letters from the prosecutors, one from the Stearns County and the other from Benton County. (Too bad more news outlets don’t include or point to the original documents this way.) Minnesota Public Radio has more factual details, noting that the “cartoons [were] posted on a couple of utility poles.”

The materials apparently depicted, among other things, “Muhammad defecating on the Koran, Mohammed discussing engaging in sexual relations with a child (purportedly his wife), and Mohammed engaging in sexual relations with animals.” There was apparently some argument that those images constituted obscenity, because of their sexual or excretory content, but the prosecutors rejected this. One concluded that, “When viewed as a whole, those images do not appear to have been distributed or displayed for sexual gratification or sexual interest,” and therefore the elements of the obscenity weren’t met. The other concluded that, even if the material “appeals to a prurient interest in sex and depicts sexual conduct in an offensive manner,” it nonetheless had “political … value” and thus couldn’t constitute obscenity.

The Stearns County prosecutor also rejected the theory that the pamphlet constituted a “hate crime.” (The other prosecutor didn’t discuss this.)

There is no specific crime in Minnesota called a ‘hate crime.’ Rather, there are specific offences, including Assault, Criminal Damage to Property, and Stalking/Harassment, that when committed because of the victim’s race, religion, sexual orientation, etc., carry enhanced penalties. Since this individual’s conduct does not rise to the level of [those offenses], none of the enhanced penalties would apply in this case.

The Benton County prosecutor likewise rejected the theory that the pamphlet constitutes criminal defamation. (Again, the other prosecutor didn’t discuss this.)

[A state] statute renders it a crime to communicate … anything which exposes a person, class or association to hatred, contempt, ridicule, degradation or disgrace in society. While the actions of the suspect in this case may constitute a violation of the statute, the statute itself is probably unconstitutional and void…. [The statute] is an unconstitutional content-based restriction on free speech and is overly broad [because it extends outside the unprotected categories of speech -EV].

The prosecutor, did however, note that the posting may violate “city … ordinances prohibiting posting of documents on utility poles and the writing or drawing of graffiti on any surface of any public or private property”; it is apparently up to the St. Cloud city attorney’s office to decide whether to prosecute the person under those ordinances.

This legal analysis strikes me as quite correct. It sounds like the speech here was juvenile, vulgar, and needlessly offensive. Though I think that polite, reasoned, and well-founded criticism of religions is eminently proper, this seems to be largely unsubstantive and needlessly rude. Nonetheless, the First Amendment protects our right to publicly convey our ideas even when they are unsubstantive and rude.

St. Cloud Mayor Dave Kleis apparently “thinks the man should face legal consequences. ‘When people do something like this, they’re doing it because they want to create some kind of reaction,’ Kleis said. ‘So they should be ready for the consequences.'” Likewise, “Mohamoud Mohamed, who leads the St. Cloud Area Somali Salvation Organization, said the cartoons demonstrate a violent mindset and that the city’s sizable Somali population would be disappointed if the man avoids charges.” I think the more legally accurate view (setting aside the prosecution under content-neutral bans on posting of documents on utility poles) is the one expressed by the Stearns County prosecutor:

Regardless of the community reaction, the State cannot criminalize a political message…. While I find that the poster’s pamphlet is reprehensible, offensive, and demeaning, the United States Constitution gives him the right to share his viewpoint with others.

Thanks to the First Amendment Law Prof Blog for the pointer.