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Author Topic: Free speech and desecration
LetterRip
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The youths actions are certainly distasteful - but how could the laws criminalizing desecration be constitutional?

http://www.newsweek.com/christianity-under-attack-teen-faces-jail-lewd-pose-jesus-statue-270120?piano_t=1

Thoughtful analysis at the Washington Post,

quote:
he legal questions, it seems to me, are these:

1. Is posing with a statue in a vulgar way — a way likely to “outrage the sensibilities of persons likely to observe or discover the action” — while physically contacting the statue “physical[] mistreat[ment]“? I’ve looked, and I could find no caselaw on the subject.

2. If the answer is, “it’s hard to tell,” is the law unconstitutionally vague as applied in this case? Also hard to tell, given that vagueness doctrine is itself vague.

3. Does the law, either on its face or as applied here, violate the Free Speech Clause? To answer that, we’d need to know what the law means.

[...]

4. Finally, does the law violate the Establishment Clause, by specially protecting religious symbols from contemptuous treatment?

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/12/desecration-of-venerated-objects/

I could see perhaps a trespassing or similar charge.

[ September 25, 2014, 07:42 PM: Message edited by: LetterRip ]

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D.W.
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Trespassing, loitering, maybe even laws against lewd behavior in public? But this charge seems about as strait forward unconstitutional as it get. [Frown]
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MattP
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Even trespassing and loitering are iffy if this is a place that normally allows public access which seems likely.
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scifibum
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The fact that the prosecuting attorney is baiting people with political views opposite his own doesn't help convince me that he's trying to serve the public interest here.
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Pete at Home
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LR is right.

quote:
Originally posted by MattP:
Even trespassing and loitering are iffy if this is a place that normally allows public access which seems likely.

You are wrong. If a cemetery normally allows public access, it would still obviously be trespassing to pose for pictures while symbolically desecrating a grave.
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Pete at Home
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Hang on here ... two elements in this law cause it to be less problematic than I initially thought.

quote:
(2) intentionally desecrates any other object of veneration by the public or a substantial segment thereof in any public place; …

Definitions. — “Desecrate.” Defacing, damaging, polluting or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover the action.

That's not telling you you can't do it on youtube. If you want to buy your own private Jesus statue and do offensive things with it on youtube, or burn a Koran on youtube, similarly protected. You just don't do it in public in a situation where you KNOW that it's likely that people physically there in public will be angered.

That's a time and place restriction, not a context restriction. And it's arguably narrowly tailored for a compelling public interest, to keep the peace.

I remember back in the 1980s we all got warned about some epically stupid missionary who posed for a picture sitting on top of a Buddha statue, and landed 30 days in jail. I reckon he'd have done more time if he'd been posing doing lewd gestures with the Buddha. Particularly if he'd done it in front of a Buddhist crowd ...

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D.W.
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I'm only against what the kid did because he did it to someone else’s property. That he did it in public or that someone may be outraged means zippo to me. Being a rude jackass is (edit) maybe it IS against the law? Either way, I wish people weren't rude jackasses intentionally out to offend others but I would rather protect these people then allow groups to restrict my behavior because THEY find it offensive.

You never know what the next person (or religion) is going to find offensive. You can't enforce this type of law without it eventually being used in a way that will offend others as well.

Also the line where "likely to observe or discover the action" is getting very blurry with social media and the world's increasingly voyeuristic and exhibitionist habits.

[ September 26, 2014, 10:28 AM: Message edited by: D.W. ]

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Seriati
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quote:
Originally posted by D.W.:
Trespassing, loitering, maybe even laws against lewd behavior in public? But this charge seems about as strait forward unconstitutional as it get. [Frown]

Why do you think it's as "unconsitutional as it gets"? It's interesting to me the parallel to hate crime legislation and hate speech rules. That we could simulataneously demand consequences for race or sexual orientation based hate speech but laugh off relgious based (unless of course the victim is a non-christian) seems totally a consequence of illogical rule application.

Does the kid deserve jail time -no - but the fact that it's even on the table is a symptom of our out of control police state mentality where punishments are always increasing and new "crimes" being established. He should get senstitivity training and community service.

How do you think people would have reacted if this same kid were doing that to a statute of Dr. Martin Luther King?

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NobleHunter
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quote:
How do you think people would have reacted if this same kid were doing that to a statute of Dr. Martin Luther King?
I think Ornery's reaction would be the same.

The law as cited by Pete makes it seem more reasonable than the initial presentation. The act is punishable due to the offense it generates in the community, not because of the offense to some diety.

I agree that the jail time is ridiculous.

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scifibum
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quote:
Originally posted by Pete at Home:
Hang on here ... two elements in this law cause it to be less problematic than I initially thought.

quote:
(2) intentionally desecrates any other object of veneration by the public or a substantial segment thereof in any public place; …

Definitions. — “Desecrate.” Defacing, damaging, polluting or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover the action.

That's not telling you you can't do it on youtube. If you want to buy your own private Jesus statue and do offensive things with it on youtube, or burn a Koran on youtube, similarly protected. You just don't do it in public in a situation where you KNOW that it's likely that people physically there in public will be angered.

That's a time and place restriction, not a context restriction. And it's arguably narrowly tailored for a compelling public interest, to keep the peace.

I remember back in the 1980s we all got warned about some epically stupid missionary who posed for a picture sitting on top of a Buddha statue, and landed 30 days in jail. I reckon he'd have done more time if he'd been posing doing lewd gestures with the Buddha. Particularly if he'd done it in front of a Buddhist crowd ...

In this case, there was nobody physically there in public who got angered. The prosecutor found out later, via pictures on Facebook, and decided to prosecute.

Even if the law can serve a compelling public interest, in this particular case it seems the prosecutor is bending it to serve as an outlet for his own outrage.

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scifibum
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quote:
Originally posted by Seriati:
[QB]
quote:
Originally posted by D.W.:
Trespassing, loitering, maybe even laws against lewd behavior in public? But this charge seems about as strait forward unconstitutional as it get. [Frown]

Why do you think it's as "unconsitutional as it gets"? It's interesting to me the parallel to hate crime legislation and hate speech rules. That we could simulataneously demand consequences for race or sexual orientation based hate speech but laugh off relgious based (unless of course the victim is a non-christian) seems totally a consequence of illogical rule application.
Can you please clarify the comparison you are making?

From what I understand, hate crime legislation does not demand consequences for offensive speech by itself - it is meant to penalize (and deter) the terrorizing effects of hateful speech combined with certain types of crimes against specific protected classes. Saying racial slurs to someone on the street: not a hate crime. Using the same words while kicking them in the face: potentially a hate crime.

I do not see how there is a parallel to this case. The kid wasn't kicking anyone in the face. If you remove the presumed speech content of the act, there is essentially no act left.

What's more, the prosecutor isn't pursuing this as a hate crime, he's using an anti-desecration law. So I don't think anyone actually has laughed off an attempt to apply the same rules.

BUT ANYWAY, of course hate crime laws are used to prosecute anti-religion hate crimes. Even against Christians! What are you even talking about? You can see some hard data here:
http://ag.ca.gov/cjsc/publications/hatecrimes/hc04/preface.pdf

quote:
How do you think people would have reacted if this same kid were doing that to a statue of Dr. Martin Luther King?
That's an interesting question, and some people might reveal a bias in how they'd react differently to the two situations.

[ September 29, 2014, 12:49 PM: Message edited by: scifibum ]

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MattP
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If there is a statue of Dr. King somewhere that is posed in such a way that one could simulate a sexual act with it, I guarantee it's already been done. Probably many times. Taking inappropriate photos with statues is kind of a Thing. I leave it as an exercise to the reader to determine the most effective terms to Google in order to unearth evidence of the phenomenon.

[ September 29, 2014, 03:04 PM: Message edited by: MattP ]

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Seriati
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quote:
Originally posted by scifibum:
Can you please clarify the comparison you are making?

In this case, I was relating that we view these actions differently based on which sacred cows are involved. Another example would be if someone took a picture of themselves urinating (without exposing themselves to avoid nudity complications) on a placque errected to memorialize a child that had died in a tragic accident. The action they are taking is predictably designed to offend and hurt other people, to inflame and the "message" they are spreading with their exercise of speech is what exactly? Oddly if this guy had been wearing an atheism rocks t-shirt it would be "better", cause at least there would be an intentional speech item involved.
quote:
From what I understand, hate crime legislation does not demand consequences for offensive speech by itself - it is meant to penalize (and deter) the terrorizing effects of hateful speech combined with certain types of crimes against specific protected classes.
Hate crimes, sort of. You're correct, it often requires that it be an add-on, but that hasn't stopped it from stretching into new areas. And with each stretch the threshhold gets lower. Certainly, you see it on campuses where the the words themselves are often enough for punishement. But even off campuses, "vandalism" has been stretched to cover things like pranks with no permenent damage.
quote:
Saying racial slurs to someone on the street: not a hate crime.
Gray area actually. You should be correct, but there is often provisions for the charge if it 'incites violence,' which arguably that does.
quote:
Using the same words while kicking them in the face: potentially a hate crime.
But that's already a chrime, as would be say defacing the statue rather than humping it.
quote:
I do not see how there is a parallel to this case. The kid wasn't kicking anyone in the face. If you remove the presumed speech content of the act, there is essentially no act left.
Seriously, what "speech content" did the act have? What is the message?

Personally, I think the kid was just goofing and had no message. If he had a message what he's doing is a tougher call. But people should be free to express their religious and other deeply held beliefs by erecting symbols on private property without fear that other people will intentionally act against them.

We should never have needed a law to teach people to show respect for others.
quote:
What's more, the prosecutor isn't pursuing this as a hate crime, he's using an anti-desecration law. So I don't think anyone actually has laughed off an attempt to apply the same rules.
I said hate crime because its a parallel resting on the same theories, not because its what the prosecutor charged. Different times, different terminology.
quote:
BUT ANYWAY, of course hate crime laws are used to prosecute anti-religion hate crimes. Even against Christians! What are you even talking about?
Logical inconsistency of supporting one, but not the other.
quote:
quote:
How do you think people would have reacted if this same kid were doing that to a statue of Dr. Martin Luther King?
That's an interesting question, and some people might reveal a bias in how they'd react differently to the two situations.
Truth is there are thousands of offensive acts that occur for every one that catches anyone's eye. When they do catch an eye, we hear all kinds of outrage and demand for charges appropriate or not.
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scifibum
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quote:
Seriously, what "speech content" did the act have? What is the message?

Personally, I think the kid was just goofing and had no message. If he had a message what he's doing is a tougher call. But people should be free to express their religious and other deeply held beliefs by erecting symbols on private property without fear that other people will intentionally act against them.

We should never have needed a law to teach people to show respect for others.

I assume that people who are offended are receiving some kind of message from the picture of the act. The parallel to a hate crime REALLY doesn't work if you are asserting that there's nothing here that amounts to offensive or hateful speech.

It may be a bit glib, but I'd say the essential speech content here is "I hold in contempt this thing that is important to others." The anti-desecration law seems to prohibit this; only things that are important symbols to others can be desecrated.

It's the same with peeing on something, except in the case of peeing you are probably doing more damage or causing a health risk or at least a bad odor in addition to conveying that message; it's more clearly an act of vandalism.

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scifibum
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Oh, and my view is that hate crimes became a thing not because race and sexual orientation are sacred cows, but because of the real phenomenon of persecution of a group via crimes against some of their number. Religion is already a protected class under the same set of laws...I think the reason this statue thing isn't viewed as a hate crime is that absent the contempt shown for the religious symbol, there's no crime left; it doesn't fit the definition.

I'm probably with you on whether simply expressing hate is itself a crime, or should ever be. Which is why I don't think what this kid did should be considered criminal simply because it was offensive (although Pete made it sound nearly reasonable if he was doing it in front of an audience knowing it would incite them to great anger.)

I'd be fine with a citation for something along the lines of vandalism, because after all the statue wasn't made to be climbed on and he probably scuffed the paint.

[ September 29, 2014, 06:26 PM: Message edited by: scifibum ]

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Seriati
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quote:
Originally posted by scifibum:
I assume that people who are offended are receiving some kind of message from the picture of the act. The parallel to a hate crime REALLY doesn't work if you are asserting that there's nothing here that amounts to offensive or hateful speech.

I said he had no message, not that it wasn't hateful or offensive speech. The whole point of the outrage is that he wasn't thinking about how potentially offensive his actions were.

What is the protected message?
quote:
It may be a bit glib, but I'd say the essential speech content here is "I hold in contempt this thing that is important to others." The anti-desecration law seems to prohibit this; only things that are important symbols to others can be desecrated.
Twenty bucks says if you ask the kid he'd deny holding the statue of Jesus in contempt. Like I said, if that was his message it would be a more protected act, though I still think you shouldn't be moving onto private property and intentionally demeaning religious or other icons erected there. Public property he's home free, with the consent of the owner of the property the same.
quote:
It's the same with peeing on something, except in the case of peeing you are probably doing more damage or causing a health risk or at least a bad odor in addition to conveying that message; it's more clearly an act of vandalism.
Well as a techical matter, this could be deemed public performance of a sex act - one that oddly is still illegal in some jurisdictions. Could be deemed public lewdness.

[ September 29, 2014, 06:46 PM: Message edited by: Seriati ]

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