The Lansing State Journal has details. (The decision not to charge the man happened in September, but I just heard about it now, and the newspaper apparently has extra details that weren’t available then.) The bottom line as to the charges:
The man didn’t damage anyone else’s property. The Quran he burned was his own. He didn’t make physical contact with another person. So proving he had threatened to do one of those things, and that there was a reasonable expectation that he would, would have been the only way to charge him under Michigan’s ethnic intimidation law.
I’m inclined to think that this is right. Burning a Koran as such is not a crime. Burning it in a context where it would reasonably be seen as a deliberate and particularized threat of future crime against some particular victim might well be a crime, and would fit within the First Amendment exception for threats. But I suspect that in context seeing a burned Koran on the doorstep of a mosque would be seen as an expression of hostility and hatred, but not a specific threat. In any case, the story struck me as worth noting.
The story also notes, “There was one other crime the man might have been charged with: littering. East Lansing officials decided not to try, because it ‘would have trivialized the offense,’ said assistant city attorney Tom Yeadon.” My sense is that there would also have been a possible First Amendment problem if the littering prosecution was motivated by the message. I doubt that, say, the prosecutor would prosecute someone for littering if he left hostile anti-NRA messages on the doorstep of the NRA office, or hostile anti-American messages on the doorstep of an American Legion office. If so, then the prosecutor can’t selectively prosecute those who supposedly litter (if this is indeed littering) using anti-Islam messages.
Kazinksi says:
It seems to me littering can’t just be leaving something in a public place where it is meant to be seen and doesn’t create a mess. If you put a flier on somebody’s doorstep, that is not littering, if you strew a ream of fliers in their yard, that is littering.
November 29, 2010, 2:52 pmWatson Ladd says:
I’m inclined to think that leaving a burned item associated with a group on the property of a group would lead to a reasonable fear that they might be the victims of arson attacks. Given the recent history of arson attacks against mosques, this probably did lead to reasonable concerns that the mosque would be burned. Now, does this constitute enough of a fear to constitute assault? Probably not.
November 29, 2010, 3:02 pmFmrADA says:
By this logic, I guess it’s okay to leave a burning cross in front of a black community’s church.
It’s just hostility and hatred, y’all.
November 29, 2010, 3:03 pmanonymous says:
Prof. Volokh,
Do you have a cite for the contention in your last paragraph, which seems to imply that a prosecution under a facially constitutional, content-neutral law might be unconstitutional if the prosecutor was motivated to charge by a desire to punish a viewpoint expressed by the perpetrator in the process of violating that facially valid law? I ask because I had to research this issue for a memo a few months ago, and I couldn’t find any case which even suggested that an impermissible prosecutorial motive of this kind (as opposed to a racially discriminatory motive, which is recognized as a basis for selective prosecution claims) could lead to the dismissal of the underlying criminal charge. (Or, practically speaking, to civil sanctions against the prosecutor for violating the defendant’s constitutional rights, given absolute prosecutorial immunity under Section 1983.) Admittedly, however, I just couldn’t find any real discussion of this issue at all in the First Amendment context, so it’s entirely possible that I missed something.
It’s an interesting issue, so if you do know of a case which addresses it, I would be very interested in knowing the citation.
[EV says:
Here, though, is the difficulty: Nothing in the court’s discussion of Hartman v. Moore precludes the defendants from raising a retaliatory prosecution defense if they are actually prosecuted even if there is probable cause to prosecute them. Such a claim — that one’s constitutionally protected conduct was a but-for cause of one’s prosecution — would be a defense against the prosecution, again even if the person is guilty of the offense. (See, e.g., Wayte v. United States, 470 U.S. 598 (1985), acknowledges that such selective prosecution claims are potentially viable, though often very hard to prove. For an example of a case that further recognizes such a claim, see Fedorov v. United States, 600 A.2d 370 (D.C. 1991).)]
November 29, 2010, 3:06 pmFred the Fourth says:
Intriguing that FmrADA uses the words “okay”, “hostility”, and “hatred”. What does any of that have to do with an ADA’s ostensible job?
November 29, 2010, 3:12 pmFred the Fourth says:
Of course, if I misinterpreted your subtle sarcasm, I apologize.
November 29, 2010, 3:14 pmjsmith says:
I hope the police have at least given the mosque this guy’s photo, so they can be on alert if he comes around again.
November 29, 2010, 3:23 pmDan the Man says:
The next time I TP someone’s house or tree and get caught by the police, I’m going to plead they’re violating my first amendment rights.
November 29, 2010, 3:29 pmFmrADA says:
@Fred: “Hostility and hatred” came from EV’s post. “Okay” was my colloquial way of saying “not a chargeable offense.”
My jurisdiction was far from Michigan, but in the state of New York it is a specific crime to burn a cross in public view. It is also illegal to make an unreasonable disturbance within 100 feet of a lawful religious service with intent to cause annoyance or alarm or recklessly creating a risk thereof. It is a violation (not a misdemeanor) to create a hazardous or physically offensive condition by any act which serves no legitimate purpose. And there may be violations of fire code.
My intended satirical critique, however, was aimed at EV’s original analysis: that without touching, property damage, or a *specific* threat, there can be no crime. I disagree with that assessment.
November 29, 2010, 3:30 pmEMB says:
The story says that he carried the burnt Koran there in a plastic grocery bag but doesn’t seem to mention whether it was still in the bag when he left it on their doorstop; if not, it seems like it might have been a good bit more inconvenient than, say, a flier to clean up, which could justify a littering prosecution on content-neutral grounds.
November 29, 2010, 3:32 pmCDU says:
Based on your characterization of New York law, it sounds like it would be perfectly legal to burn a cross in private, then deliver the extinguished remains to a black community’s church. That seems like a much closer equivalent to what the fellow in this case did.
November 29, 2010, 3:37 pmJoseph Slater says:
This close to Thanksgiving, I feel I should point out that “littering” was what they got Arlo Guthrie for in “Alice’s Restaurant.” Granted, there was no religion issue there. . . .
November 29, 2010, 3:38 pmKirk Parker says:
Joseph Slater: my what a cramped view of “religion” you seem to have!
November 29, 2010, 3:44 pmFmrADA says:
@ CDU: You may be correct. There is certainly some level at which de minimus conduct should not be criminalized. We could go on for hours with examples of offensive symbolic speech that either crosses or does not cross the line between critical speech and chargeable conduct. For illustration purposes, how close to a synagogue can one paint a swastika before it takes on an actionably intimidating meaning?
Again — and then I’ll drop it — my issue is with the syllogism that no physical touching + no property damage + no specific threat = no crime. That may be the law in Michigan by default, but it is not a feature of U.S. Constitutional law.
November 29, 2010, 3:50 pmFred the Fourth says:
@FmrADA: thanks for the elaboration, and for reminding me that I could, perhaps, remember what I just read 30 seconds ago :-).
Interesting set of NY laws – how well have they been tested in court?
Would the “100 foot” rule impact the lovely activities of the Westboro funeral-picketing folks?
November 29, 2010, 3:51 pmMalvolio says:
Really? Why not? Consider the following case:
Wouldn’t that constitute assault? And the first case has the same critical elements: a clear description of an intended harm, delivered to the intended victim. How could it not be a threat?
November 29, 2010, 3:52 pmGuy says:
The closest I can think of off the top of my head is Reno v. American-Arab Anti-Discrimination Committee, which is a little too different in context to be a reliable clue.
November 29, 2010, 3:55 pmbillm99uk says:
Surely the equivalent would be a burnt cross, not a burning cross. Or is that mere semantics?
November 29, 2010, 4:08 pmMike says:
It really does make me curious now what the ruling would be for a burnt cross… is the seriousness of the implied threat directly proportional to the immediate drama of the medium?
November 29, 2010, 4:20 pmDavid M. Nieporent says:
Virginia v. Black says something close to otherwise. (How close depends on what you mean by “specific threat.”)
November 29, 2010, 4:28 pmFmrADA says:
@ Fred: These laws are not frequently tested on their own. For example, burning a cross is often accompanied by other charges (conspiracy, burglary if on the victim’s property, reckless endangerment, etc.). The NY appellate courts have generally supported “hate crime” enhancements and other legislative efforts to control behavior intended to “send a message,” but I’ll defer to anyone with knowledge of the recent decisions. (That’s what I get for entering civil practice.)
@ billm99uk & Mike: This is what we call a jury question. The NY law specifically prohibits *burning* the cross, but whether placing a burnt cross on the lawn across from a church also crosses the more generically-defined line is for debate. Keep in mind that by their nature, misdemeanors stand at the edge of what the public “feels” should be legal. A good defense attorney could definitely attack the elements of the offense in the burnt cross scenario.
November 29, 2010, 4:35 pmChris Travers says:
Are you suggesting that a Hindu or Buddhist temple next door to a Synagogue couldn’t display a Swastika as part of their bona fide religious symbolism?
November 29, 2010, 4:39 pmFmrADA says:
@ David: I take your point, but keep in mind that the Supreme Court in Virginia v. Black permitted the State to ban cross burning done with intent to intimidate. What was fatal to the law was its presumption (albeit a rebuttable one) that the jury was to assume any such burning was intended to intimidate.
Laws are legal when they put the burden on a prosecutor to prove it was done “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.”
November 29, 2010, 4:46 pmChris Travers says:
FmrAda:
How do New York courts typically interpret RAV v. St Paul?
November 29, 2010, 4:46 pmwhit says:
TP’ing takes time and effort to clean up. It’s qualitatively different than what happened here.
November 29, 2010, 5:37 pmwhit says:
also keep in mind that cross burning historically, time and time again, was followed by the murder of black men… often immediately after the burning
there is no such consistent history in the US of similar acts following koran burnings.
most of the koran burnings I have heard of in the US and.or threatened koran burnings were not followed by any violent acts whatsoever.
November 29, 2010, 5:39 pmwhit says:
it’s directly proportional to historical fact.
again, burned crosses were frequently followed by lynching of black men. that creates a reasonable fear in many cases.
burned korans have no such history of imminent violent action perpetrated by the burners
November 29, 2010, 5:42 pmgeokstr says:
Hey, they both involve burnt stuff, so they are perfectly appropriate for the phony moral equivalentists.
November 29, 2010, 6:29 pmJeff R says:
To me, the combination of fire with religious icons here is sufficiently evocative of a KKK cross-burning that reading a veiled threat into the act is not at all unreasonable.
November 29, 2010, 6:43 pmKazinksi says:
There was no political issue there either. The littering charge was for dumping garbage because the town dump was closed:
the political issue came later when the conviction for littering was used to disqualify him from serving his country:
And from my own personal observations in Viet Nam, one more litterbug wouldn’t make a bit of difference one way or the other.
November 29, 2010, 7:38 pmRandolph says:
This one was self cleaning? I guess the Koran really is magical.
November 29, 2010, 7:54 pmRyan Waxx says:
If burning a item belonging to a group were sufficient to call it a threat, then burning the American flag (especially in public) would also constitute a threat and be banned under whatever law banned the Koran-burning.
November 29, 2010, 9:25 pmMDT says:
Ryan Waxx,
If burning a item belonging to a group were sufficient to call it a threat, then burning the American flag (especially in public) would also constitute a threat and be banned under whatever law banned the Koran-burning.
Quite tr . . . oh, I mean, but that’s different! Isn’t it?
November 29, 2010, 9:48 pmLaura(southernxyl) says:
I agree.
Also, it seems weird to me that you can take an object and put it on somebody else’s property, and set it on fire, and there’s no way to charge you with anything. There ought to be a law!
November 29, 2010, 10:35 pmRicardo says:
Not really. Nobody has said anything about burning a Koran in public or on one’s own private property.
If you leave a burned flag on someone else’s private property, the question becomes whether that is a credible threat directed against the person because of his or her connection to the United States. Within the U.S., that’s a pretty difficult scenario to imagine as the flag is not viewed by anybody as an ethnic, religious or racial symbol. But there have been at least two arson attacks on mosques (one under construction in Tennessee) in the U.S. within the past few months that appear to have been motivated primarily by hatred of Islam. That at least adds some impact to petty acts of vandalism directed against mosques and would understandably put the patrons of the mosque on edge.
November 29, 2010, 10:55 pmDavid Schwartz says:
Perhaps under the right circumstances, but these are nothing like those circumstances. It’s 100% clear that the intent in this case is to offend.
November 29, 2010, 11:04 pmKen Arromdee says:
That sounds sort of like an inverted heckler’s veto: actions by other people over whom you have no control can be used as an excuse to prevent you from speaking. (It’s inverted because they might not be on the other side, although that doesn’t mean they’re on yours either.)
November 29, 2010, 11:17 pmRicardo says:
I don’t see any way of avoiding this problem unless you want to get rid of laws banning threats entirely. What about if this guy starts getting letters in the mail with photographs of Theo van Gogh with a big red X drawn on top? Does that count as a threat or at least fall in some gray area? Would prosecuting it as a threat invoke the “inverted heckler’s veto” problem as well?
November 29, 2010, 11:53 pmReaderY says:
What’s the difference between a burning cross and a burning Koran?
One could argue that neither should be a crime, but why one and not the other?
If we say the burning cross has a particularized historical meaning a burning Koran doesn’t, then aren’t we in effect protecting historically prevalent religions more than, or at least treating them differently from, newer immigrants’ religions? After all, only historical prevalent religions have had time to develop these particularized historical meanings.
November 30, 2010, 1:37 amwhit says:
you can play games all you want, but there is a difference.
one item that you can pick up and put in the trash, AND that was clearly a political statement, not merely littering is a bit different than having to spend significant time untangling TP from your house, trees, etc. and probably havign to get out a ladder to deal with.
throwing a nerf ball at somebody and throwing a baseball sized piece of granite at them are both (technically) “assault” but common sense tells you the cop should treat them just a bit differently, as should the court system, the prosecutor etc.
November 30, 2010, 5:00 amwhit says:
except that’s not what happened. they LEFT a burnt koran. they did not SET IT ON FIRE on that person’s property. try reading. it works.
here: “And then he pointed his bike back toward East Lansing. He said he didn’t stop at the Islamic Center, just tossed burnt pieces of the book onto the front sidewalk and kept riding, scattering pages as he went.”
November 30, 2010, 5:03 amwhit says:
there is no law against burning a cross. for the umpteenth time.
November 30, 2010, 5:04 amLaura(southernxyl) says:
try reading. it works.
Try not being an a-hole. It makes people less likely to skip over your comments in future.
November 30, 2010, 8:20 amJoseph Slater says:
Kazinski: I cannot disagree with your excellently sourced post.
Kirk Parker: Take it up with Officer Obie (sp?).
November 30, 2010, 8:42 amCJColucci says:
Would there be a constitutional problem if a DA prosecuted litterers, but only those whose littering was based on a desire to leave a message, without regard to the content of the message? Or prosecuted only litterers whose message-based littering was hostile to those on whose property the litter was dropped?
November 30, 2010, 1:02 pmChris Travers says:
Wouldn’t you have to look at context?
I think that in itself might not be enough to create a true threat, any more than standing on the street corner and shouting “At some point in the future things will become so bad that we will have to start assassinating government officials, and when that time comes, we will be ready” is a true threat against government officials.
November 30, 2010, 2:58 pmavid reader, reluctant poster says:
“But Alice doesn’t live in the restaurant, she lives in the Church nearby the restaurant, in the bell-tower. . . . And living in the bell-tower like that, they got a lot of room downstairs where the pews used to be to throw their garbage.”
So: the garbage was deposited in a Church? Granted, though, it wasn’t burnt. “Just another typical case of American Blind justice, and there was’t nothin’ I could do about it.”
November 30, 2010, 10:40 pmElliot says:
Burning books seems to have a long history as an expression of disapproval of the contents.
December 1, 2010, 12:38 amwhit says:
it’s part of my chahm. or not
December 1, 2010, 1:25 amwhit says:
i imagine the updated version of alice’s restaurant wouldn’t have the same rhythm. “1280*1024 jpeg compression scheme images” doesn’t have the same poetry.
December 1, 2010, 1:27 amJ N says:
Interesting idea, but also clearly wrong.
December 2, 2010, 9:23 pmmarkm says:
“And then he pointed his bike back toward East Lansing. He said he didn’t stop at the Islamic Center, just tossed burnt pieces of the book onto the front sidewalk and kept riding, scattering pages as he went.”
That sounds like littering to me.
December 3, 2010, 6:35 pm