The Volokh Conspiracy - 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.)

	[Eugene Volokh, January 16, 2009 at 12:32pm] Trackbacks 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.)