Terry Jones, Koran-Burning, and Selective Prosecution — or Not

AP reports.

Florida pastor was arrested Wednesday as he drove a pickup truck towing a large barbecue-style grill filled with kerosene-soaked Qurans to a park, where the pastor had said he was planning to burn 2,998 of the Muslim holy books — one for every victim of the Sept. 11, 2001, terrorist attacks.

Sheriff’s deputies in Polk County, Fla., arrested Pastor Terry Jones, 61, and his associate pastor, Marvin Sapp Jr., 44, each on a felony charge of unlawful conveyance of fuel. Jones had said he was heading to a nearby park in Mulberry to burn the Qurans on Wednesday, the 12th anniversary of the attacks. Sheriff’s officials said that Jones was also charged with unlawful open-carry of a firearm, a misdemeanor, and that Sapp faces a charge of having no valid registration for the trailer….

Mulberry’s mayor, along with area elected officials, a sheriff’s deputy and several Polk County residents have talked about the need to express love and tolerance for all faiths on Sept. 11.

I don’t know enough of the facts to opine on a bottom line, but here’s the general legal analysis:

1. Jones has a constitutional right to burn Korans — in the sense that the government can’t bar burning Korans because they are Korans, or because such burning is seen by some as blasphemous — even though others may be offended by it.

2. He can’t, however, do so while violating laws that apply equally to all conduct regardless of its communicative message, or its religious offensiveness. Thus, for instance, he doesn’t have the right to burn Korans in violation of fire codes, e.g., rules that prohibit open fires in brush fire danger zones. See this blog post, which points to two cases in which people were prosecuted for burning flags in violation of such rules. Nor does Jones have the right to convey kerosene-drenched Korans in a way that violates neutral bans on conveyance of fuel (assuming the way he was taking them indeed violated those bans). Nor does he have the right to carry an unloaded gun in the process.

3. This having been said, if the government selectively targeted him because it was Korans he was trying to burn, and not rags or something else, that would violate the First Amendment. See Wayte v. United States (1985) (“the decision to prosecute may not be [based on] … the exercise of protected … constitutional rights”). The burden of proving such selective prosecution, though, is on Jones, and it may be a hard burden to meet. It may well be that if government officials in this locale learn that someone is towing lots of kerosene-soaked stuff (however rarely they may indeed learn this), they’d go after him regardless of the message, precisely because such behavior seems dangerous.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. UPDATE: I originally erroneously wrote “gasoline” instead of “kerosene”; I’ve now fixed this.