Stanislav Shmulevich, the student at New York’s Pace University
arrested for desecrating a stolen Koran, probably did not realize
he was committing a felony hate crime. There is after all no
statute criminalizing the desecration of the U.S. flag, the Torah,
or the Bible. New York’s galleries are filled with defiled and
despoiled Christian symbols that are considered by critics to be
ingenious works of art. Perhaps on his way to class Shmulevich
admired some of these works. Perhaps he did not consider his
desecration of the holy Koran an example of protected free
expression so much as a clever bit of conceptual art. Besides,
Shmulevich, a Ukrainian immigrant, was now in America, a nation
that boasted of its separation of church of state and long
tradition of free speech. Indeed, the 22-year-old student was at
first arrested for misdemeanor vandalism, and it was not until the
application of significant pressure (some might say intimidation)
from Islamic groups that the charge was upped to a hate crime.
Ignorance of the law, however, is no excuse, even when such
statutes are applied or prosecuted arbitrarily. In the case of hate
crimes, the rule of thumb seems to be that what is a crime for one
group is protected speech for another. The difficulty is
determining whether you are “one” or “another.” As Jacob Sullum
writes: hate crime statutes treat “perpetrators of the same crime
differently because they hold different beliefs.”
Allow me to clarify the rules.
It is not a crime to desecrate Christian symbols, but it is a
crime to desecrate other religious symbols, unless you are a Muslim
desecrating Jewish symbols which is not a crime, but protected
“speech.”
While it is no crime to desecrate the American flag, it would be
(in New York, at least) a crime to desecrate the flag of an Islamic
country. The Saudi flag bears the Islamic declaration of faith “I
testify that there is no god but Allah, and Muhammad is his
messenger,” a reminder that in Arab countries church and state are
inseparable. Burn a Saudi flag and you will not only get tossed in
a New York slammer in a New York minute, you will be starting an
international incident and worldwide jihad that would make the
second intifada look like a tiff over who rides shotgun.
The New York statute reads in part: “A person commits a hate
crime when he or she commits a specified offense
and…intentionally commits the act or acts constituting the
offense…because of a belief or perception regarding the…
…religion [or] religious practice…of a person, regardless of
whether the belief or perception is correct.”
Hate crimes legislation, created by timid, cowardly, and
pressure-group-influenced legislators, therefore coopts and renders
null and void the freedom of expression clause of the First
Amendment, which was designed by courageous legislators, true
revolutionaries who had put their necks on the line to protect the
criticism of religion.
But it is not hate crime statutes that prevent many Westerners
from criticizing Islam, rather it is intimidation. As Christopher
Hitchens has said, dumping the Koran in the toilet is not
intimidation. Supporting the assassination of Salman Rushdie is.
The former offends Muslim lobbying groups like the Council of
Islamic-American Relations. The latter does not. It was
intimidation by radical Muslims that prevented Western TV stations
and newspapers from showing the very newsworthy Danish newspaper
cartoons of a few years ago, though the media pretended their
decisions were based on a reluctance to give offense. CNN admitted
as much when it said it declined to show the cartoons because it
did not want to put journalists in its foreign bureaus at risk.
Such intimidation is not solely limited to Islam. You may recall
that Seinfeld episode a few years back when Kramer
accidentally set alight a Puerto Rican flag, then tried to put out
the flames by stomping
on it? That episode caused such consternation among Puerto
Rican-Americans that NBC never again aired that particular show,
and it is seldom seen in syndication. And Puerto Rico is part of
the U.S.!
THE IMMEDIATE DIFFICULTY with New York’s case is that Shmulevich
did not commit his act against “a person” but “an ideology.” There
were no witnesses to his “illegal” actions. He was apprehended only
after he was observed pilfering the holy books by the university’s
ubiquitous security cameras. Besides, if Shmulevich had really
insulted Muslims he would have been prosecuted under the Fighting
Words Doctrine, which criminalizes “insulting or ‘fighting words,’
those that by their very utterance inflict injury or tend to incite
an immediate breach of the peace.” But Shmulevich was not accused
of violating the doctrine, doubtless because the U.S. Supreme Court
has held that mere offensiveness does not qualify as “fighting
words,” which makes sense or people like me would pretty much get
arrested every time we opened our mouths or wrote a column.
Shmulevich told his captors that he had tossed the Koran in the
can following a row with Muslim students. His actions were then a
reaction to something the Muslim students had said. What
is unclear. Perhaps it was something about infidel Christians.
Whatever it was, Shmulevich seems to have found it hateful or
insulting. One wonders why he did not contact the authorities and
have the Muslim students charged with a hate crime. On second
thought, it is fairly obvious why. The authorities would have
laughed in his face and told him to get a life, something they
would never have said to the Muslim students.
