The New Anti-Blasphemy Laws:

For more on the resurgence -- in the U.S., fortunately still mild -- in attempts to punish blasphemy, see this thread here.

As I noted below, the Shmulevich prosecution seems to be an unusual sort of hate crime prosecution, in which Shmulevich's punishment may be enhanced simply because he was motivated by religious hostility. But the connection to blasphemy seems to me clear: Speech or conduct that is intended to offend certain religious groups is especially likely to yield pressure for greater enforcement (e.g., from religious activist groups), and is especially likely to be obviously motivated by someone's religion. It's thus especially likely that someone who is blaspheming and who violates some other law -- even, for instance, who merely recklessly inflicts more than $250 in damage on a bystander's property in the course of a blasphemous act -- will face vastly increased punishment.

AntonK (mail):
I really do understand that this is a legal blog, and that therefore you approach what are often much broader issues from a specifically legal angle, but there's just so much more to this episode, that a law-only examination is simply and starkly inadequate.

Along with Volokh's fine posts, you might want to read this from Hitchens at Slate as a starting point to the wider issues involved here: Why are we so scared of offending Muslims?

Before me is a recent report that a student at Pace University in New York City has been arrested for a hate crime in consequence of an alleged dumping of the Quran. Nothing repels me more than the burning or desecration of books, and if, for example, this was a volume from a public or university library, I would hope that its mistreatment would constitute a misdemeanor at the very least. But if I choose to spit on a copy of the writings of Ayn Rand or Karl Marx or James Joyce, that is entirely my business. When I check into a hotel room and send my free and unsolicited copy of the Gideon Bible or the Book of Mormon spinning out of the window, I infringe no law, except perhaps the one concerning litter. Why do we not make this distinction in the case of the Quran? We do so simply out of fear, and because the fanatical believers in that particular holy book have proved time and again that they mean business when it comes to intimidation. Surely that should be to their discredit rather than their credit. Should not the "moderate" imams of On Faith have been asked in direct terms whether they are, or are not, negotiating with a gun on the table?

The Pace University incident becomes even more ludicrous and sinister when it is recalled that Islamists are the current leaders in the global book-burning competition. After the rumor of a Quran down the toilet in Guantanamo was irresponsibly spread, a mob in Afghanistan burned down an ancient library that (as President Hamid Karzai pointed out dryly) contained several ancient copies of the same book. Not content with igniting copies of The Satanic Verses, Islamist lynch parties demanded the burning of its author as well. Many distinguished authors, Muslim and non-Muslim, are dead or in hiding because of the words they have put on pages concerning the unbelievable claims of Islam. And it is to appease such a spirit of persecution and intolerance that a student in New York City has been arrested for an expression, however vulgar, of an opinion.

This has to stop, and it has to stop right now. There can be no concession to sharia in the United States. When will we see someone detained, or even cautioned, for advocating the burning of books in the name of God? If the police are honestly interested in this sort of "hate crime," I can help them identify those who spent much of last year uttering physical threats against the republication in this country of some Danish cartoons. In default of impartial prosecution, we have to insist that Muslims take their chance of being upset, just as we who do not subscribe to their arrogant certainties are revolted every day by the hideous behavior of the parties of God.

It is often said that resistance to jihadism only increases the recruitment to it. For all I know, this commonplace observation could be true. But, if so, it must cut both ways. How about reminding the Islamists that, by their mad policy in Kashmir and elsewhere, they have made deadly enemies of a billion Indian Hindus? Is there no danger that the massacre of Iraqi and Lebanese Christians, or the threatened murder of all Jews, will cause an equal and opposite response? Most important of all, what will be said and done by those of us who take no side in filthy religious wars? The enemies of intolerance cannot be tolerant, or neutral, without inviting their own suicide. And the advocates and apologists of bigotry and censorship and suicide-assassination cannot be permitted to take shelter any longer under the umbrella of a pluralism that they openly seek to destroy.
7.30.2007 9:31pm
Paulie (mail):
Come on, Anton! Come on!
7.30.2007 9:54pm
The Drill SGT:
I'm not a lawyer, and the distinctions seem to escape me. I have a right to burn a US Flag, but folks will try to discipline me if I burn a Hams Flag and they'll go ballistic if I put a Koran in the toilet, but if I put a Crucifix in Urine, it's worth a lot of money.

yeah, I know, there is the issue of who owns the object and the property in question, but isn't there an underlying disconnect in the treatment of Muslim object versus Christian ones?
7.30.2007 10:19pm
Randy R. (mail):
Yes, there is, Drill Sargent. And the Hitchens post above is an excellent argument, in my opinion. I don't see the difference among your examples, at least not in the US under our Constitution. (As for the Crucifix in Urine, that's an example of the free market at work, and so it is worth whatever someone pays for it).

And the same should go for any atheists, or Darwinists as well.
7.30.2007 11:57pm
Justin (mail):
I don't get it. Earlier this year, a Muslim from Yale tried to burn an American fan. The commentariat were calling for his head, saying that his actions should be punished to the fullest effect of the law. They defended their position based on the fact that it was somebody else's flag - but they clearly thought that the damage was more than minor financial damage. Some people called for the person (an American citizen) to be deported. I argued that they shouldn't punish the speech aspect, and people go ballistic on me (even the liberal commenters seemed to terribly disagree).

Now, we have a non-Muslim who destroys someone elses Koran, and people see my point (well, maybe not, but if they had to face up to their hypocrasy....)

Yay, me. Vindicated by counterexample!

(And while I think the student should be expelled for stealing school property, I think he should face only misdemeanor criminal sanctions, fwiw).
7.31.2007 1:03am
Eugene Volokh (www):
"The commentariat" is a pretty mixed group. For instance, I'm presumably a member of the commentariat, I don't recall commenting on the story you describe (I don't even recall the story), but I'm pretty sure that if I had, I would have urged that the fellow be punished for theft, with no enhancement for flagburning.

Perhaps some people did argue for enhanced penalties for that guy, but against enhanced penalties for this one. But why not identify the particular commentators who are being inconsistent, rather than talking about "the commentariat" generally?
7.31.2007 1:12am
Adam J:
It's funny, this is a case where the hypocrites start throwing stones at each other. The neoconservatives who go apesh*t when people burn a cross or flag start saying this is no big deal, and the uber liberals who say cross or flag burning is freedom of speech start saying we need to set an example against intolerance. I'd say lets try to find some middle ground here for both examples (preferable one that doesn't turn a minor midemeanor into a serious feloney, but still considers that both are designed to provoke greater acts of violence and hatred), but I'm sure someone will be accusing me of being unprincipled or moral relativism or some nonsense.
7.31.2007 1:26am
Harry Eagar (mail):
Hmmm. I read the link to the February post on Professor Ali Khan, in which the UN urged states to prevent insults to religion, Does anybody know of any Muslim state that has acted on that warning when Muslims insult infidel religion?

No connection to any events in N.Y., of course. Just wonderin'.
7.31.2007 3:52am
What if someone wraps a Koran in the US flag and then sets it alight? And a Christian the attempts to extinguish the fire by peeing on it? Is that what's called a "hard case"?
7.31.2007 8:12am
chris c:
by prosecuting the kid for a thought crime, the state neatly turns the moron from a garden variety punk to a First Amendment martyr. Nice work.
7.31.2007 10:49am
Anderson (mail) (www):
What these cases remind me of is the tort of intentional infliction of emotional distress. I'm liable for IIED if I do something wrongful that I *know* is likely to cause such distress.

These anti-blasphemy cases seem to me like an attempt to create a criminal version of the tort.

Except that IIED isn't (supposed to be) about garden-variety annoyance that one blogs about indignantly -- it has to involve serious emotional harm, almost always the kind with a physical component (your state's mileage may vary).

In general, I think we should treat Qur'an burners, Bible burners, and Torah burners the way we treat U.S.-flag burners. They conveniently alert us to what jerks they are, so that we can safely ignore whatever they're Trying To Say. But they're not criminals, or shouldn't be in *this* country.
7.31.2007 10:51am
I don't see the issue here. The prosecuting is occuring because he burned someone else's Koran.
7.31.2007 10:56am
chris c:
Anderson - exactly. well put. giving people freedom to express their opinions openly ensures that we don't have to dig deep to find out who the haters, bigots, and like are.
7.31.2007 11:25am
Eugene Volokh (www):
Blue: Except putting someone else's stuff in the toilet is generally a misdemeanor. Someone who does that to another's copy of the Atlas Shrugged would be prosecuted for a misdemeanor. But Shmulevich is being prosecuted for a felony.
7.31.2007 12:08pm
Matthew in Austin (mail):
Well Eugene, I don't know how good an example that is, considering many people reading your blog probably consider Atlas Shrugged more sacred than any holy book. :)
7.31.2007 12:23pm
Armigerous (mail):
Blasphemy,huh?....well Mohammed's momma rode shotgun on the garbage wagon and wore kosher's THAT for blasphemy?????
7.31.2007 12:32pm
Jay Evans (mail):

people reading your blog probably consider Atlas Shrugged more sacred than any holy book.

Well, maybe at least a much better read.
7.31.2007 12:36pm
Jason Adkins (mail):
Interested readers may be interested in this ZENIT interview with Notre Dame's Rick Garnett on "the right to offend."
7.31.2007 12:50pm
A law unto himself:
The narrative is simple:

Christianity - majority - powerful - dominant - evil
Islam - minority - oppressed - diverse - acceptable

This is the only way to possibly understand how state funding of feet washing stations at a public university for use before Muslim prayers can plausibly be acceptable.
7.31.2007 12:52pm
Jason Adkins (mail):
The grammar in my comment above is a good reason why we need to proofread. Sorry. Do go and read the Garnett interview.
7.31.2007 12:54pm
Conservative Activist Judge:
I don't recall the exact example of the piss Christ, but I do remember the elephant dung Virgin Mary. The art was funded by taxpayer dollars, and the complaint was that funding was used for works that taxpayers found offensive. An added layer of complexity, and an important one.
7.31.2007 1:11pm
Michigan Statutes:

750.102 Blasphemy; punishment.

Punishment—Any person who shall wilfully blaspheme the holy name of God, by cursing or contumeliously reproaching God, shall be guilty of a misdemeanor.

750.103 Cursing and swearing.

Cursing and swearing—Any person who has arrived at the age of discretion, who shall profanely curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost, shall be guilty of a misdemeanor. No such prosecution shall be sustained unless it shall be commenced within 5 days after the commission of such offense.

750.169 Disturbance of religious meetings.

Disturbance of religious meetings—Any person who, on the first day of the week, or at any other time, shall wilfully interrupt or disturb any assembly of people met for the worship of God, within the place of such meeting or out of it, shall be guilty of a misdemeanor.

7.31.2007 2:53pm
Seerak (mail):
This idea of piggybacking blasphemy punishment onto real but mild legal transgressions is a scary step I would never have anticipated.

But the next step, I can: with our byzantine legal code, it's actually pretty damned hard to not be breaking some minor law or another at some point.

Talk about a chilling effect.
7.31.2007 3:16pm
I believe that the Yale sutdent you are refering to burned a flag that was attached to the owners house and then tried to get out of trouble by saying it was protected speech. I am not sure how it turned out, but if someone lit my house on fire I hope that arson is on the table. As for the Pace University student, he should be treated as if he damaged any other book owned by the university, no more no less. What is the punishment for spilling coffee on a book borrowed from the library? Is it a hate crime as well?
7.31.2007 4:46pm
davod (mail):
The policeman who arrested this guy is a Muslim.
7.31.2007 7:07pm
Mr. Mandias (mail) (www):
I don't see any justification for making religious offensiveness a grounds for hate crimes laws but not racial offensiveness or gender offensiveness or sexual orientation offensiveness or whatnot.

Hate crimes laws are bad ideas.
7.31.2007 8:15pm
...I do remember the elephant dung Virgin Mary. The art was funded by taxpayer dollars...
IIRC, the piece was privately owned (maybe by Saatchi) and loaned to the Brooklyn museum for display in a temporary exhibition. NYC has provided some of the museum's funding, and thus Guiliani's threats to cut them off because of the offense given some by the picture.

BTW, I visited that museum for the first time a few months ago and was wow'ed by a couple of their temporary exhibits. The "Madona" picture is long gone from there.
7.31.2007 10:57pm
Brian G (mail) (www):
Of course. Bush is making sure no one dare insult Christianity without punishme...what, it was a Koran? uh, uh, this has to be Bush's fault somehow.
8.1.2007 12:44am
Rich Rostrom (mail):
There's an error here. Shmulevich committed desecration, not blasphemy. Blasphemy is speech which abuses or defames God, or some sacred personage. Desecration is the defiling of a sacred object or place. Blasphemy is verbal, desecration is physical.
8.1.2007 12:46am