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.
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