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Felony Hate Crime for Waiter to Play Arabic Chant at Jewish Wedding?

So New York authorities seem to think; here's the Complaint in People v. Buttafuoco (typos in original, all-uppercase text shifted to mixed case):

In the State of New York County of Nassau: Det Anthony J Rempel, shield#\1121. Being a member of the Nassau County Police Dept deposes and says that on or about the 5th day of January, 2009, at about 1:00am , at 200 Southwoods Rd Woodbury, the defendant did violate New York State Penal Lawsection(s) §240.30 (1) and §485.05 (1)(a) as a hate crime sub a.

§ 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. Communicates, or 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.

And
§ 485.05 (1) (a) A person commits a hate crime when he or she commits a specified offense, and the defendant intentionally selects the person against whom the offense is committed in whole or in substantial part because of a belief or perception regarding 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. The above listed offense is a specified offense under Penal Law 485.05 (3).

TO WIT: On the aforementioned date, time and place of occurrence, the defendant Buttafuoco, Stephen DOB 07/23/85 did use a taped audio message from his cell phone to communicate by an intercom system from the sanctuary of the Woodbury Jewish center, during a Jewish faith wedding, which transmitted throughout the reception hall. The prayer and chant of “Takbir” with a response “Allahu Akbur”, then “Takbir”, “Allah Akbar” did alarm and instill fear in the victim and other guests at the wedding which was for the victims son. This prayer and chant was recorded from a rally that the defendant had attended and taped on his cell phone according to the defendants own statements to the witness. The defendant did intentionally select the person against this crime committed because of a belief regarding religion. The defendant admitted he did this with the intention of disrespecting the religion. This is a violation of NYS Penal Law section 485.05 (1) A, which would make this a hate crime.

The above is based upon information and belief; the sources being the written statements by the victim and witness, The oral statements by the defendant, the audio message on the defendants cell phone, which was overheard by an investigating Detective, with consent by the defendant and other information received by the investigating Detective’s.

Is this constitutionally permissible? To be sure, employees may (and should) be fired by their employers when they disrupt weddings or annoy wedding guests, whether through speech or otherwise. The questions are (1) whether such offensive speech may constitutionally be made into a crime, (2) whether this particular "aggravated harassment" statute outlawing such offensive speech is constitutionally vague and overbroad even if a narrower and clearer statute punishing such speech would be permissible, and (3) whether it may be made a more serious crime when the target is intentionally selected based on the target's presumed religion.

My view is that this statute, at least if it's interpreted to apply to cases such as this one, is unconstitutionally overbroad and vague (though I'm aware that lower courts have indeed upheld some such statutes in some other contexts).

A content-neutral statute that banned all speech on someone else's property in a context where the property owner would almost certainly deny permission, and the speaker knows that the property owner would deny such permission, might be a constitutional content-neutral restriction. But no such statute is in play here; Buttafuoco is being prosecuted because of the offensiveness of the message he communicated, in a statute that isn't limited to communication on private property without the owner's permission. (I say "might be a constitutional content-neutral restriction" because it's possible that determining whether the property owner would have denied permission could require content-based judgments that courts might be barred from making; I'm just not sure how that would play out.)

CJColucci:
But what does Joey think of all this?
1.16.2009 12:51pm
Richard Nieporent (mail):
I could have sworn we had something call the First Amendment. I guess I was mistaken. Welcome to the Canadian and European concept of free speech. Of course he should be fired for this stupid act.
1.16.2009 12:51pm
Bill Poser (mail) (www):
What should be a crime is the use of all caps in the complaint. Why some people feel the need to emulate the computers of thirty years ago is a mystery to me.
1.16.2009 12:52pm
BGates:
Buttafuoco is being prosecuted because of the offensiveness of the message he communicated
That's not quite right. He "did alarm and instil fear in the victim and other guests at the wedding". This is closer to a cross burning than a fart joke.

After the Rapture on Tuesday I'll be able to hear Takbir at a Jewish wedding and think it's a nice moment of bridging two cultures, but given the present existence of George Bush and, thus, war, it would sound like a threat.
1.16.2009 12:54pm
einhverfr (mail) (www):
Bill Poser:

Interesting, prior to Charlemagne's time, the Latin alphabet was used with all caps, no spacing, and no punctuation, like this:

WHENINROMEDOLIKEAROMAN

This was changed because it was hard for monks to read silently.
1.16.2009 12:57pm
UR Confused (mail):
Putting up a political yard sign is a crime. Criticizing your congressman is a crime. And this surprises you?

The idea that a living constitution prevents the government from doing anything at all is a quaint anachronism. There are no limits to what our black robed betters can do to us.
1.16.2009 12:59pm
wooga:
I think the statute is horrible written in the first place, because, for example, it makes virtually all sexual crimes and muggings into 'hate crimes.' Advice to criminals: never target defenseless people on crutches, never purse snatch, and never run an email scam targeting the gullible elderly.

Also, I love how the "disability" means "a physical or mental impairment that substantially limits a major life activity." So if I kill myself because I'm depressed, I've committed a hate crime against myself.
1.16.2009 12:59pm
Eugene Volokh (www):
BGates: Are you at all troubled by the fact that your rationale is not at all limited to speech at someone else's wedding, but would apply -- as the statute does -- to speech in lots of places? People could thus be sent to prison for chanting "Allahu Akbar" at demonstrations. They could be sent to prison for chanting "Stop Killing Babies!" at anti-abortion demonstrations (since that might sound like a threat to abortion providers). They could be sent to prison for putting up signs saying "Sodomy is an Abomination," since that might sound like a threat to gays. And again this wouldn't be limited to speech on others' property, since the statements could be threatening (under your rationale) even when said or displayed in public.

If you set the threshold for what's a punishable threat low enough, a great deal of speech would lead to prison terms.
1.16.2009 1:00pm
erp:
If being a jerk a hate crime, we'll need to build a lot more prisons.
1.16.2009 1:05pm
Ex-Fed (mail) (www):
"Communicates, or 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."

That describes 75% of the Volokh Conspiracy commentariat.

"Annoyance" is pretty patently unworkable. "Alarm," I think, has been rejected in various cases -- R.A.V. v. St. Paul?

Maybe one could draft a statute that prevented people from actually disrupting events, or at least nonpublic events, through some time-place-manner application. (The no-picketing-funerals laws in response to the Phelps seem like a ham-handed attempt at that.) It would be tricky to draft. But I seem to recall language somewhere that said that you could use viewpoint-neutral rules to exclude people from nonpublic events.
1.16.2009 1:09pm
Lior:
As applied here, the statute does not seem to me to implicate the First Amendment: the waiters hired to serve in a private gathering on private property ought not to have a First Amendment right to address the crowd. If they do, of course the situation would be different.

That said, the statute is silly; causing "annoyance" should not be a crime, and in any case distinguishing those using the PA system ("electronic means") from those that simply shout is hard to fathom. I agree that the statute is Constitutionally overbroad, since on its face it applies to speech in public places.
1.16.2009 1:10pm
Dave N (mail):
The idea that a living constitution prevents the government from doing anything at all is a quaint anachronism. There are no limits to what our black robed betters can do to us.
If this was a judicial decision, I might agree. But we don't even have a criminal complaint signed by a prosecutor. All we have here is one cop's interpretation of what the law is or what he thinks the law should be.

And as a prosecutor, I have told police officers, "You do your job and I will do mine."
1.16.2009 1:14pm
Eugene Volokh (www):
UR Confused: Could you please be a bit more precise and therefore more accurate in your characterization of the law? For instance, it's pretty clear that not all criticism of Congressmen is a crime, and that not all political yard signs are a crime (though a city might well be allowed to ban signs that are too large, or of which there are too many). It would be helpful if we avoid such inaccurate overgeneralizations and focus on what is indeed restricted.
1.16.2009 1:16pm
Jonathan Rubinstein (mail) (www):
Flogging for the perpetrator but only after the statute writers are tested with the twizzlers
1.16.2009 1:21pm
Raffi (mail) (www):
I think this both ought to be and is a constitutionally impermissible statute, because it is overbroad. As someone planning a wedding in New York right now, for example, what if I were to insist on playing some music I knew would be very offensive to traditionalist relatives of mine at our reception - for example, Turkish folk music - as an attempt to shock people out of intolerance? It almost seems (and tell me if I'm misreading) like the police could charge me under both statutes, with my guests as victims.
1.16.2009 1:30pm
Hoosier:
EV--As you may have noticed, I know nothing about law. Having said that, what concerns me about § 485.05 (1) (a) is that it defines a crime on the basis of subjective grounds of an actor's "beliefs and perceptions". Doesn't seem a good idea to me.

But isn't this weak thinking on my part? Because criminal intent has to be based on the "beliefs and perceptions" of the accused. (Or really "perceptions of the perceptions," but that's taking me into Umberto Eco Land.)

I ask because "(3) whether it may be made a more serious crime when the target is intentionally selected based on the target's presumed religion" raises the issue of hate crimes legislation. And while I am viscerally against these laws, I'm not sure where the line is drawn between permissible and impermissible consideration of the accused's intent.

Apologies in advance for the Crim Law I--Day One-type question.
1.16.2009 1:36pm
Ariel:
Given the history and probably reactions, how is yelling "Allahu Akbar" in a Jewish wedding different from yelling fire in a theater?
1.16.2009 1:38pm
anomdebus (mail):
I like his "excuse". Getting back at his father by playing something at an event at which he is not present (presumably).. Also, describing it as "quietly" while playing it over loud speakers and not realizing that the DJ playing his message would go over the same speakers as the rest of the DJ's output.
1.16.2009 1:44pm
Loophole1998 (mail):
Lior,

Since when did waiters lose their First Amendment rights? And what does private property have to do with the First Amendment?

Sure he could be fired or removed from the property, but that doesn't give the government the right to punish his speech.
1.16.2009 1:44pm
Loophole1998 (mail):
Ariel,

Yelling "Allahu Akbar" in a Jewish wedding has a policial component that is missing from yelling "Fire" in a crowded theater.
1.16.2009 1:48pm
musefree (www):
240.30 does seem to be unusually restrictive. Are there similar statutes in other states? How do courts determine what is likely to annoy another person? Every opinion that is remotely controversial would annoy someone or the other.

Am I right in inferring that this statute outlaws *all* speech or opinions that are expressed to or in the presence of someone who would find them annoying/offensive (and the speaker knows this)?
1.16.2009 1:50pm
Bob from Ohio (mail):
The Buttafuoco name once again appears to be very descriptive of behavior.

These hate crime laws based on mere words are horrid. They serve only to punish unpopular speech.

Cross burnings on the property of the target are a different matter. That is a ugly form of trespass that the law has punished for 1000 years at least.
1.16.2009 1:53pm
Thomas_Holsinger:
I agree this prosecution has 1st Amendment problems, but misdemeanor disturbing the peace wouldn't. The right to expression does not include, as an example, use of a four zillion watt set of anti-matter energy powered speakers to express your opinion at full volume and blow out eardrums four miiles away.

Plus it would not violate the waiter's 42 USC 1983 civil rights for him to be fired on the spot.
1.16.2009 2:01pm
anomdebus (mail):
Loophole1998,
Perhaps I misunderstand you, but I don't think the apolitical nature of the statement 'Fire' is the reason it is not covered by free speech conventions.

I will preemptively chuckle in case that was your intent.
1.16.2009 2:06pm
geokstr:
In any case, all I can say is - finally - someone actually has officially ruled that a Muslim can say or do something out of bounds.

If you've followed any of the blogs that document the tsunami of jihadi or dhimmi activity, you will see that apparently it is perfectly OK to say things in a demonstration, in a sermon in a mosque, on a website, in a YouTube video, or at a US college campus as:

"Hitler didn't do a really good job"
"Kill the Jews"
"Holocaust: it is time to the ovens again."
"We want to kill all the Jews, all the Jews should be slain, they have no right to exist!"

Some of this must get very close to the "Fire in the Theatre", inciting to kill an entire ethnic group.

But Homeland Security, the FBI, the American judicial system, and the mainstream media have their hands full looking for the last three living skinheads and all fourteen of the known anti-abortion protesters. After all, they represent the real danger to our way of life.
1.16.2009 2:22pm
musefree (www):
If the statute restricted itself only to speech that disturbs the peace (like a 1000 decibal megaphone) or only criminalized speech made on someone else's property, it would be less troubling. But it seems to address any (annoying) speech that is communicated to another person via certain means, irrespective of where it is made. I don't know whether the word 'communicates' has a limited meaning in this context, but read broadly, the statute seems to, for instance, outlaw any controversial opinion expressed through email etc. That seems obviously unconstitutional to me.
1.16.2009 2:24pm
musefree (www):
I find the comparison with 'shouting fire in a theater' far-fetched. If you shout fire, there is an *imminent* danger of death and injury to others. It is basically an initiation of force. On the other hand, noone is physically harmed by hate speech. Even if such speech causes inspires someone else to commit a crime, there is no imminence in the act; the blame in this case thus rests with the actual perpetrator, not the speaker. On the other hand, in a dark theater and because of the unique circumstances, recklessly shouting fire is a directly violent act against others.
1.16.2009 2:31pm
Ariel:
musefree, Loophole,

If someone yells Allahu Akbar at a *Jewish* wedding, could that reasonably cause the guests to flee out of the exits and perhaps result in some people being trampled to death? Remember, when Allahu Akbar is yelled at a Jewish wedding, it is usually immediately proceeded by a suicide bombing or firing a machine gun. The fellow who broke into the Seattle Jewish center yelled it before he gunned down his victims, among the many other cases where those words might just cause the same reaction as "fire."
1.16.2009 2:35pm
BGates:
Eugene, I only meant to say that characterizing Buttafuoco's actions as "giving offense" is misleading; offending and insulting are not the same as frightening. I don't know as much about the law as Hoosier (since I can't even make one of these deals - § - without copy/paste). Is it constitutional to forbid implicit threats?

Your interpretation of my rationale suggests that speech is understood completely free of context. I think the Takbir would be more reasonably perceived as a threat if it occurs unexpectedly in a gathering of Jews than if it was heard coming from a mosque or a protest march. On the other hand, if the number of Jews murdered in the name of Allah drops back down to zero for the next several years, then a stunt like this will look as innocuous as the signs you describe.
1.16.2009 2:42pm
velvel in decatur, georgia (mail):
This brings to mind discussion of Judge Macgruder's famous (or infamous) comment regarding a proposition "There is no harm in asking."

The hate speech as a crime versus free speech issue is only going to get larger and more complex as time goes on.

While I might personally want to throttle the nitwit we walk a very thin line when we take on the European limits of free speech and the Canadian officialdom whiningly taking on the attack on Mark Steyn for writing about Muslims in ways they deem not very complimentary.

Does anyone have a view of what a more liberal/more sensitive bench might do with a case like this? My fear is that satire/public ranting would become proscribed by courts that have lost sight of the need for debate or even well-placed insults. Were I the king what would I do to the miscreant who condemned my royal court?
1.16.2009 2:42pm
JB:
In any case, all I can say is - finally - someone actually has officially ruled that a Muslim can say or do something out of bounds.

And because it happened in such a stupid way, that ensures that the next time someone wants to legitimately restrict a Muslim's speech or actions they will think twice when they shouldn't.
1.16.2009 2:45pm
Phil Smith (mail):
Would the host have legal grounds for refusing to pay the caterer, or even suing the caterer?
1.16.2009 2:48pm
einhverfr (mail) (www):
musefree:

That seems fair to me. I would add that RAV v. St Paul, Brandenburg v. Ohio, and others require that the danger really be imminent. I can stand on a street corner and advocate the violent overthrow of the government as an abstract idea all day long (US v. Yates) but the CEO of Blackwater couldn't pledge his company's support.....
1.16.2009 2:48pm
einhverfr (mail) (www):
So, suppose the waiter was Basque and wearing one a Lauburu pendent (I know a number of Basque who use the Lauburu openly on business cards, jewelry, etc). Would that be a hate crime too?
1.16.2009 2:54pm
CJColucci:
Leaving aside the substantial problems in drafting an appropriate statute, I doubt it would be unconstitutional to make it a crime to disturb a wedding with a series of loud, meaningless, random noises likely to disturb or annoy people who had a reasonable expectation of not having their celebration disrupted. If that is so, then I don't see why it would be unconstitutional to apply such a law not only to loud, meaningless, random noises, but to language with content, so long as the people disturbed or annoyed had some reasonable expectation of not having their celebration disrupted. And if part of the reason the sounds emitted unreasonably disrupt the celebration is the content of the language used, so what?
1.16.2009 2:55pm
wooga:
If I ran into an all black wedding, wearing a KKK outfit, and screamed "die you ____[insert string of racial slurs]___!"

I think there should be some level of punishment, because it would actually create a fear of imminent bodily harm to the crowd. The racial "hate" component is what makes the crowds' fear reasonable, and converts the act from "being a major asshole" into a near assault.

Shouldn't THAT be the concept behind hate crime legislation, rather than trying to enhance ordinary crimes because the perpetrator was being a dick? In other words, the 'hate' part should simply make it easier to prove a traditional element of a crime. Don't make 'hate' a new element to some new crime, or a factor in punishment.

Here, the screaming of "allah ackbar" at Jewish events is, unfortunately, not infrequently followed by imminent bodily harm. Was the context enough to strike legitimate fear in the minds of the guests, or was it simply enough to really piss them off? If the former, then prosecute under old laws. If the latter, then just fire the guy and hurl retaliatory insults.
1.16.2009 2:59pm
einhverfr (mail) (www):
CJColucci:

But a felony? FWIW, I think that one might be able to extend the idea of nuisance laws to cover disruptions of weddings, funerals, and the like. However, nuisance laws tend to be either civil matters or misdemeanors. Making it a felony seems problematic to me.
1.16.2009 3:01pm
einhverfr (mail) (www):
There are also cases where I think such laws patently could not reach. For example, suppose a wedding hires a caterer who is Muslim. At the appointed prayer time, he begins his prayers and plays a recorded chant. I see no way one could prosecute that sort of case. I think the intent to disrupt even in this case, would have to be a central piece, and I have trouble seeing it as a felony hate crime.
1.16.2009 3:03pm
Jacob Berlove:
I don't understand how this case differs for the Virginia cross burning statute upheld by the Supreme Court.
1.16.2009 3:08pm
Yankev (mail):
Does it matter that this wedding was in a synagogue and not a hotel? Is there a constitutional infirmity in statutes (such as the one MN used to -- and may still have) making it a crime to intentionally disrupt a religious service?

Should I be free to walk into a mosque and reply to cries of "Allahu akhbar" by yelling "Why are you saying that Allah is a mouse?"

Given that the wedding was in a place of worship and the defendant entered with the purpose of disrupting it in a way that he knew (or should have known) that the property owner would have denied admittance for, is there room for the doctrine of trespass ab initio?

Though in the absence of danger or an intent to create danger (either of which may indeed be present, as Wooga and Ariel point out), felony charges seem like a bit much.
1.16.2009 3:23pm
UR Confused (mail):
Eugene Volokh
"UR Confused: Could you please be a bit more precise and therefore more accurate in your characterization of the law? For instance, it's pretty clear that not all criticism of Congressmen is a crime, and that not all political yard signs are a crime (though a city might well be allowed to ban signs that are too large, or of which there are too many). It would be helpful if we avoid such inaccurate overgeneralizations and focus on what is indeed restricted."

You know what I mean about yard signs. And you don't need a link to know what I mean about criticizing congressmen.

Eugene you have an Aggie in the Circle approach to constitutional protections.

An Aggie (Tx A &M) and his wife were out hiking. A gang of robbers attacked. The robbers drew a circle in the dirt, stood the Aggie in the circle, and told him under no circumstance to step out of the circle. They left, dragging his wife.

An hour later the robbers came back. "While we were gone we raped your wife, then beat her to death with sticks." The Aggie laughed and laughed.

"Why are you laughing?" said the robbers.

"While you were gone, I stepped out of the circle three times!"


Eugene, the courts tell you that what matters is the rule of law. They tell you their decisions are based on a rational interpretation of the constitution. And like the Aggie you believe that what matters is what you are told matters. So you pick and tease at the logic in court decisions, and you act as though you believe that logic really explains how the decisions were reached.

Phooey. What matters is what the justices personally want. They do what they want to the extent they can get away with it this session, and after they decide what they want, they cook up reasons to justify what they did.

That any political yard sign anywhere in America is criminal is an obscenity. That any criticism of any congressman anywhere in America criminal is an obscenity. That you imagine those statements need adjectives is a measure of your confusion about what matters.

Free speech has been taken from us. The court will not give it back. They will chip it away year after year until the 1st amendment is as irrelevant as the commerce clause. 'Cause they want to. Not because the constitutions says they can.

The idea that a living constitution prevents the government from doing anything at all is a quaint anachronism. There are no limits to what our black robed betters can do to us. To approach the question otherwise is to miss what matters.
1.16.2009 3:25pm
JB:
For example, suppose a wedding hires a caterer who is Muslim. At the appointed prayer time, he begins his prayers and plays a recorded chant.

Islam provides wide latitude for people to pray at different times, and to make up prayers they missed at the next prayer time. A Muslim who interrupted others' activities to loudly pray at a specific time would be extremely rude and not following his religion's commandments. Furthermore, Islam also discourages praying in situations where one is likely to be distracted (i.e, in the presence of a crowd of people having an unrelated party).

That's not to say the kind of situation you describe wouldn't come up, just that the appropriate remedy is for the person in question to be slapped to his senses by the local imam or other knowledgeable person.
1.16.2009 3:28pm
David M. Nieporent (www):
UR Confused: you are confused.
1.16.2009 3:31pm
MW:
DaveN: "But we don't even have a criminal complaint signed by a prosecutor. All we have here is one cop's interpretation of what the law is or what he thinks the law should be."

I'm pretty sure this is not correct -- at least it wouldn't be in New York City. The complaint is drafted by the DA's office, not the officer. So this is a prosecutor's view.
1.16.2009 3:31pm
Michael B (mail):
This reflects upon the entire set of problems as pertains to classifications of "hate crimes" in the first place. The (epistemic) problem of positively determining human motives, then assigning civil or criminal, punitive valuations to those motives, is dicey territory. Politically correct and subjective biases in general all serve to prejudice such valuations.

Best proximations of motive can be important to investigators and prosecutors before jurists, they might also prove helpful to "social scientists" after the fact in tentative and hypothetical terms. But assigning criminal or civil penalties to human motives per se - rather than or in addition to the criminal activity - is "thought crime" territory.

Should Ted Kaczynski, the unabomber, have been sentenced differently, on the basis of motive? The Washington D.C. snipers? The waiter in question, was his motive "hate," or was it a "strong dislike," or was he more simply acting on impulse and being a jerk, perhaps also due to some unrelated, momentary disruption in his life? Should "hate" receive one penalty, and "strong dislike" another, and weaker forms of "dislike" another still? Why or why not?

Proximating classifications of motive are important to investigators, prosecutors, jurists and, presumably, to social scientists as well as proximate and hypothetical tools. But "hate" or "strong dislike" based crimes per se are "thought crimes" and should be resisted.

Re, People v. Buttafuoco, a contractual obligation was presumably not fulfilled due to the waiter's action, perhaps punitive penalties are also warranted, nothing beyond that.
1.16.2009 3:36pm
marksleen (mail):
What about the tort of outrage? The general tort elements do not mention a falsity, although the Supreme Court has set a requirement that statements about public figures be false (See Hustler v. Falwell. If the tort of outrage could apply in these circumstances, that would seem to support a finding that the conduct at issue here could also be made criminal. I do realize, though, that one could argue that criminal liability is an added burden on free speech. Thoughts?
1.16.2009 3:40pm
einhverfr (mail) (www):
JB:

Islam provides wide latitude for people to pray at different times, and to make up prayers they missed at the next prayer time. A Muslim who interrupted others' activities to loudly pray at a specific time would be extremely rude and not following his religion's commandments.


I did not say loudly. Suppose that this was played at a moderate volume which was not disruptive in itself (i.e. not something that people could not easily carry on with conversations, etc.) but loud enough where the person was praying to be a reasonable focus point.

Furthermore, suppose that the person evidently did take some steps to reduce the impact by moving as far away from the celebration as practical.

The question is whether the mere presence of the Arabic chant itself could ever be per se a hate crime at a Jewish wedding. Even if you have a law saying "no disruption," I don't think it could be, even if in other contexts it might cause alarm.
1.16.2009 3:48pm
einhverfr (mail) (www):
I also agree with Markscleen that civil court might be applicable in this case.
1.16.2009 3:49pm
JB:
Einhfervr,
In that case I completely agree with you. No disruption, no crime.

I also don't think the 'azn is hate speech against Jews in itself. There are contexts in which it would be (if someone beat up a jew while chanting it, it would clearly have a hateful politico-religious subtext), but none that involve actually using it to pray.

It's also worth noting that it would be a crazed person indeed to, out of hate for a particular group, play a hateful sound in their presence in a nondisruptive fashion.
1.16.2009 3:53pm
DG:
This is called "being a jerk". It should not be criminal offense to be a jerk. I would support a modification to the assault laws to allow a little rough justice, though.

How about this? You play "allah akbar" at my wedding, and I get to punch you once, really hard, in the mouth. Everyone is happy, no one goes to prison, and even the offender realizes he had it coming.

Of course, we can't do that, because of lawyers. Sorry, disregard.
1.16.2009 4:07pm
Spinster:

Remember, when Allahu Akbar is yelled at a Jewish wedding, it is usually immediately proceeded by a suicide bombing or firing a machine gun.


"Remember"? "usually"?

Is there a history of such interruptions? This is the first time I've heard of it.
1.16.2009 4:36pm
Lior:
Loophole: The First Amendment protects the waiter's right to stand outside the wedding hall and shout, probably also to shout through a megaphone. It protects his right to protest, distribute handbills and write letters to the editor. To the extent the law jeopardizes these rights it is unconstitutional. However, the waiter has no right to make a general address inside the wedding hall, absent authorization from its owner or the people who were running the event, so the First Amendment cannot protect that right. The wedding is a private meeting and is only open to the guests. It is open to the waiter as hired help, but not as a participant, certainly not as a speaker or as the person in charge of background music.

Do I have a First Amendment right to address your family dinner tonight? In a different context, all citizens have a First Amendment right to protest in front of a bank. Does that include a right to break in and interrupt the meeting of the board of directors?
1.16.2009 4:50pm
NowMDJD (mail):

For example, suppose a wedding hires a caterer who is Muslim. At the appointed prayer time, he begins his prayers and plays a recorded chant.

Suppose a Moslem (or a member of another religion began praying out loud during a movie, or during a university lecture. He played some religious chanting, which could be heard by the auditors of the movie or lecture

Suppose that this was played at a moderate volume which was not disruptive in itself (i.e. not something that people could not easily carry on with conversations, etc.) but loud enough where the person was praying to be a reasonable focus point.

Suppose the recording were loud enough for the auditors of the movie or lecture to hear, but that they could easily attend to the event they came to see.

The question is whether the mere presence of the Arabic chant itself could ever be per se a hate crime at a Jewish wedding.

The primary question is whether this disruption should be punishable. If you look at hate crime statutes, what they do is enhance the penalties if the primary crime is motivated by "the victim's actual or perceived race, color religion, natural origin, [etc.]" No more, and no less. The prosecutor has to prove beyond reasonable doubt that the crime was motivated by the person's religion. Some statutes may define the element to state that the crime be motivated by hostility to the group in question, which is harder to prove.

In your example, your defendant would argue that his mild behavior showed that he was not so motivated. The prosecutor would argue that ostentatious prayers by one religion disrupting the services of another religion in its own place of worship constitute a hate crime. The jury would decide.

Whether hate crime statutes are a good idea is a whole nother question. I personally am uncomfortable with the concept. Be that as in may, if (for example) a Jew stood up in the aisle of a Catholic church and started to chant Jewish prayers during the Mass, he would reasonably be prosecuted for that under nuisance laws.

What this Buottofuoco guy did was more than bad manners.
1.16.2009 5:09pm
Rattan (mail):
Finally, a news item in which a Muslim goes to trial for a prank played in a Jewish setup instead of being shot or bombed along with several children as a safety precaution for the civilians.
1.16.2009 5:15pm
Michael B (mail):
Rattan, your myopia and complacency is noted. Are you vying for a talking-head position at one of the broadcast networks at the national level?

Witness for the prosecution here, here and here, for starters.
1.16.2009 5:26pm
Ariel:
Spinster,

I gave an example of a Muslim interrupting the Seattle Jewish center, which happened in the last couple of years. That wasn't a wedding, but the point was that Allahu Akbar yelled in a Jewish context usually is proceeded by something unhappy.
1.16.2009 5:32pm
einhverfr (mail) (www):
NowMDJD:

Correct me if I am wrong, but I don't know of any felony nuissance laws. My points are that I can clearly see a case for making disruptions of civic (or for that matter religious) ceremonies by protesters of any stripe illegal under nuissance laws, but I have never seen a nuissance law which was anything beyond a fairly minor misdemeanor.

However, I agree that what the guy did was more than bad manners. I would further support civil suits as the appropriate level of remedy.
1.16.2009 5:41pm
einhverfr (mail) (www):
Ariel:

This guy didn't yell. He used the intercom to play a pre-recorded prayer chant. This is a fairly severable case. Bad manners? Sure. Actionable in civil court? Perhaps. Criminal? Not sure I agree with that.
1.16.2009 5:43pm
Ariel:
einhverfr,

I'm not sure it should be criminal either. Civil for sure. Criminal - maybe. I think the above example of wearing a KKK outfit to a black wedding would be roughly comparable.
1.16.2009 5:59pm
Dave N (mail):
MW wrote:
DaveN: "But we don't even have a criminal complaint signed by a prosecutor. All we have here is one cop's interpretation of what the law is or what he thinks the law should be."

I'm pretty sure this is not correct -- at least it wouldn't be in New York City. The complaint is drafted by the DA's office, not the officer. So this is a prosecutor's view.
I would note that the linked document (unsigned, I might add) has an apparent time of 2:35 p.m. on Friday, January 9 and a return date on the complaint of Saturday, January 10.

As a result, I doubt that anyone from the Nassau County District Attorney's office saw this document prior to its preparation.

Of course I could be wrong (particularly since I do not practice criminal law in New York). And it is noteworthy that this case will be prosecuted by the same District Attorney who apparently has a strong disregard for First and Second Amendment rights.
1.16.2009 6:08pm
Spinster:
Ariel, you said:


Remember, when Allahu Akbar is yelled at a Jewish wedding, it is usually immediately proceeded by a suicide bombing or firing a machine gun.


Is there a history or pattern that you speak of? Seattle is not an example of this. I'm not sure what we are supposed to "remember."

Also...does "proceeded by" mean "followed by"? I usually don't see "proceeded" paired with "by."
1.16.2009 6:20pm
pluribus:
Ariel:

Allahu Akbar yelled in a Jewish context usually is proceeded by something unhappy.

You have said this twice, Ariel, and I wonder what you mean by "proceeded." Does "something unhappy" (by which I think you are suggesting a suicide bomb or the like) usually happen after or before the yell? If before, who cares about the yell? Do you possibly mean "followed"? Just asking.
1.16.2009 6:30pm
Seamus (mail):

Given the history and probably reactions, how is yelling "Allahu Akbar" in a Jewish wedding different from yelling fire in a theater?


Uh, because yelling "fire" in a theater is likely to result in a stampede to the exits, with the potential for injuries and death to those caught therein, while yelling "Allahu akhbar" at a Jewish wedding is more likely to (and should) result in an ass-kicking to the yeller.
1.16.2009 6:34pm
einhverfr (mail) (www):
Lior, I think you are right in your analysis, but what does it mean when this statute is applied in this way? I mean, one is making it a felony to "annoy" people based on their religion or ethnicity. Furthermore, the law as scoped does not distinguish between public and private venues.

Furthermore, if I call you up on the telephone and make tasteless jokes about your religion, that would be a hate crime under the same law, if you could show I was intending to annoy you. Similarly, if your neighbor is Mormon and you call him up and say "I just got a six-pack of beer. Feel free to come on over and have one." That might also be a felony.

I think one could regulate intentionally disrupting private celebrations and ceremonies as nuissances. I don't think this law does so.
1.16.2009 6:48pm
Ariel:
Proceeded is the opposite of preceded. It's a fairly common usage if not as common as preceded or followed.

Spinster, there is a history or pattern that Allahu Akbar is usually followed by a terrorist attack. One wedding example is the suicide bombing in Jordan (which was not Jewish). Various Jewish examples include the Seattle Jewish attack, Daniel Pearl, the recent Mumbai Chabad attack, and the many other attacks against Jews in Israel where the attacker has yelled this. The 9/11 folks also did this before there atrocity. I can't think of a Jewish wedding off of the top of my head, but I can think of both weddings and Jewish attacks. So I may have slightly overstated my case. Not by much, though. If it happens in Jewish contexts and is followed by terrorism and happens in non-Jewish contexts and is followed by terrorism, a Jewish wedding might seem like a particularly likely place to cause panic.
1.16.2009 6:53pm
Thomas_Holsinger:
Loudly challenging others to fight is classic disturbing the peace. In some circumstances it is inciting a riot.

A Muslim waiter who is part of a caterer's team at a wedding in a synagogue has permission to enter to serve food, but not to disrupt the wedding. For him to challenge the wedding party to a fight would certainly be disturbing the peace. And intentionally disrupting it by pouring drinks on the bridal procession, from the balcony, would be disturbing the peace.

So his shouting Allahu Ackbar during any part of the proceeding would be arguably intentionally disruptive and a breach of the peace.

Hate speech laws are not necessary. Generic disturbing the peace is the proper charge.

As for the caterer's civil liabilty, the waiter would be acting within the course and scope of his employment so emotional distress damages would lie, as those are foreeable from the event being a wedding. Punitive damages would require some sort of ratification, such as the waiter having been disruptive on prior occasions.
1.16.2009 10:23pm
Kent G. Budge (www):
My take as a non-lawyer? It ought to be possible to craft a law that targets this kind of behavior, whether committed against Jews by a Muslim or Muslims by Jews.

This law didnt' succeed in doing so in a way compatible with the Constitution.
1.17.2009 12:30am
LM (mail):
BGates:

Buttafuoco is being prosecuted because of the offensiveness of the message he communicated
That's not quite right. He "did alarm and instil fear in the victim and other guests at the wedding". This is closer to a cross burning than a fart joke.

I'd say it's closer to a burning fart joke. Do we really want to go down the "punishing speech content" road, however obnoxious it is?

Disturbing the peace, fine.

... and sullying the good name of "Buttafuoco."
1.17.2009 12:39am
Lior:
einhverfr: In my original (1:10pm) comment I explained my [layman's] view in full: the law is stupid, but not unconstitutional as applied to this waiter (it is constitutional for NYS to criminalize causing "annoyance" in a private place). As both you and Prof. Volokh point out, the law also criminalizes behaviour which is protected by the First Amendment, and to that extent is should be unconstitutional.

I don't know whether the unconstitutionality in some cases makes the law completely invalid or not, but I really don't care. The problem is that the law declares bad manners to be a felony crime.

I think there is a tendency to confuse "constitutionally permissible" with "acceptable and decent". The Bill of Rights sets a lower bar for the restrictions the (Federal) government may place on liberty. But just because a statute passes this weak test shouldn't make it automatically acceptable.

Just because the "Protect America" act may be consistent with the 4th Amendment doesn't make it a good law. The main question about all the child pr0n laws Congress has been passing should not be whether they are acceptable under the 1st amendment, but whether there's any point to them in the first place. The same holds about this law. The waiter's 1st Amendment rights were not violated, and firing him would be the right punishment. But a felony prosecution? That's awful.
1.17.2009 2:45am
whit:

If I ran into an all black wedding, wearing a KKK outfit, and screamed "die you ____[insert string of racial slurs]___!"

I think there should be some level of punishment,


yes. getting your ass kicked.

then, the cops laughing at you when you make an assault complaint.

but seriously, yelling "die you..." in the above circumstances would almost certainly qualify as a criminal threat. and it doesn't have the free speech issues that the case we are discussing does. iow, it's a bad analogy.

i am sorry about yelling "allahu akbar" is not a criminal threat. it should not be a criminal matter.

the person should be told to leave. if he then refused, trespassing would be the appropriate offense.

this hate speech crap is weak euro-crap.

as for the disturbing the peace stuff,. that might work too. my jurisdiction has no such charge. we get along ok without it.
1.17.2009 3:50am
NowMDJD (mail):

Correct me if I am wrong, but I don't know of any felony nuissance laws. My points are that I can clearly see a case for making disruptions of civic (or for that matter religious) ceremonies by protesters of any stripe illegal under nuissance laws, but I have never seen a nuissance law which was anything beyond a fairly minor misdemeanor.

Correct. The question in this Buttafuoco case is (1) whether the perp intended to annoy or intimidate the wedding party (if the latter, there may be a felony, not a nuisance), and (2) what the motivation was. These issues of intent and motivation are not apparent to those of us who may have read only the post or the judicial opinions; you have to have been at the trial to determine this. Of course, the appellate courts take the fact determinations of the trial court as the starting point for rulings on the law.


However, I agree that what the guy did was more than bad manners. I would further support civil suits as the appropriate level of remedy.

This is nice in theory, but a waiter is likely to lack the resources to pay a judgment. So there is no remedy for the wedding party in any event. And the threat of lawsuit is not a deterrent. Perhaps a jail term is.

If the waiter did this not to intimidate Jews, but to damage his employer's business, there would seem to be no hate crime. The question then is whether he committed a felony against his employer-- extortion or whatever. Again, I don't know the facts. But performing criminal acts that, taken in isolation are not felonies, with the intent to destroy someone's business may be a felony. Think about someone who flattens the tires of delivery trucks of a company that doesn't pay protection. Flattening tires ordinarily is not a felony, but in this case it would be.

But if the waiter did this because of a financial disagreement with his employer, it isn't a hate crime. It may be, though, if he did it because he didn't like the religion of his employer.

Finally, if a waiter was just off the boat from Umm al-Qaiwan and thought that engaging in public prayer is just what people should do at that time of day, he may not be guilty of any crime because he lacks necessary intent.

Remember that a key element of any crime is the mental state of the person committing the offensive act or omission.
1.17.2009 10:41am
Ken Arromdee:
but seriously, yelling "die you..." in the above circumstances would almost certainly qualify as a criminal threat. ...
i am sorry about yelling "allahu akbar" is not a criminal threat.


In this context, it is a threat, in the same way that burning a cross on a black person's lawn is a threat even if nobody actually says "and we're going to burn you like this cross".

Context actually matters.
1.17.2009 12:16pm
Thomas_Holsinger:
NowMDJD,

The waiter's employer is liable for emotional distress damages as the waiter was acting within the course and scope of his employment, and emotional distress is reasonably forseeable from disruption of a wedding. This is why caterers carry Errors &Omissions coverage.

Also note Whit's point. The waiter did it knowing he wouldn't be stomped into jelly. The relative pacifism of some ethnic groups invites such abuse. The known violence of others deters it. This is not a matter of race. Disruption of Okie, Mexican and Assyrian weddings in my area would be seen as a welcome opportunity for exercise at the about to be dearly-departed's expense.
1.17.2009 12:51pm
whit:

In this context, it is a threat, in the same way that burning a cross on a black person's lawn is a threat even if nobody actually says "and we're going to burn you like this cross".

Context actually matters.



i disagree that it is a threat.

"die you infidels" would be.

not "allah akbar"

sorry
1.17.2009 5:47pm
NowMDJD (mail):

The waiter's employer is liable for emotional distress damages as the waiter was acting within the course and scope of his employment, and emotional distress is reasonably forseeable from disruption of a wedding. This is why caterers carry Errors &Omissions coverage.

The waiter will be liable only if his act was within the scope of employment, done to further the interests of the employer. This was not.

If a repo man breaks your kneecap to get you to tell him where your car is, the bank he works for probably is liable.

If a teacher rapes your kid, even within the school building, the school probably is not liable.

The errors and ommissions coverage indemnifies the caterer against its employee dropping the wedding cake, but not against the employee yelling "Allahu Akbar"
1.17.2009 7:08pm
ReaderY:
It seems to me that there is a kind of trespassing going on: one doesn't have a right to take over the PA system at someone else's event, and the fact that the property involved amplifies speech doesn't change the fact that it's someone else's property that one is taking control of without permission.

I would agree that the law on its face isn't limited to these situations, and reading the law to its maximum conceivable extent -- as applying to playing the same recording on ones own loudspeaker next to a pro-Israel rally for example -- would clearly be overbroad.
1.17.2009 8:01pm
Thomas_Holsinger:
NowMDJD,

I've been a litigator for 30 years, and tried a wedding case.
1.17.2009 8:39pm
Ken Arromdee:
i disagree that it is a threat.

"die you infidels" would be.

not "allah akbar"


In the context where it is said at a gathering of Jews and being said in a manner that's disruptive in an otherwise lesser way, yes, it's a threat. It's true that the words' literal meaning is innocuous, but that doesn't mean it's not a threat. The disruption of a gathering of Jews by using those words is commonly a prelude to an attempt to kill those Jews.
1.17.2009 11:55pm
Seamus (mail):

In this context, it is a threat, in the same way that burning a cross on a black person's lawn is a threat even if nobody actually says "and we're going to burn you like this cross".



Guess I'd better lay aside my plans to burst into a Protestant wedding next Saturday and yell "Up the long ladder/and down the short rope/To hell with King Billy/And God bless the pope./If that doesn't do/We'll rip 'em in two/And send 'em to hell with your red, white, and blue."
1.18.2009 8:48pm
Yankev (mail):

In the context where it is said at a gathering of Jews and being said in a manner that's disruptive in an otherwise lesser way, yes, it's a threat. It's true that the words' literal meaning is innocuous, but that doesn't mean it's not a threat.
Exactly. There's nothing inherently threatening about chanting HEP, HPE ( Hierusalema est perdita, either), but at one time in Europe it was one of themopre threatening sounds a bunch of Jews could hear.
1.18.2009 9:42pm
LM (mail):

Guess I'd better lay aside my plans to burst into a Protestant wedding next Saturday and yell "Up the long ladder/and down the short rope/To hell with King Billy/And God bless the pope./If that doesn't do/We'll rip 'em in two/And send 'em to hell with your red, white, and blue."

I'd pay good money to hear that.
1.19.2009 2:46am
Ryan Waxx (mail):
i disagree that it is a threat.
"die you infidels" would be.
not "allah akbar"


Then here's a quick quiz for you:

Which of the above two phrases was spoken on Flight 93 while the hijackers were, well... trying to kill infidels?

Certainly the phrase can and is used peacefully by many. But that same phrase, when shouted aloud in a public venue, has a very different context nowadays. You may not like it, and you may prefer the second use doesn't exist because of your slavery to PC, but there it is.
1.19.2009 3:12pm
Ryan Waxx (mail):
i disagree that it is a threat.
"die you infidels" would be.
not "allah akbar"


Then here's a quick quiz for you:

Which of the above two phrases was spoken on Flight 93 while the hijackers were, well... trying to kill infidels?

Certainly the phrase can and is used peacefully by many. But that same phrase, when shouted aloud in a public venue, has a very different context nowadays. You may not like it, and you may prefer the second use doesn't exist, but it does exist independent of whatever PC considerations you feel has priority over reality.
1.19.2009 3:16pm
Ryan Waxx (mail):
oops, hadn't realized the first one had gone through.
1.19.2009 3:21pm

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