Man burns Koran in front of Mosque, is arrested—but what is his crime?

Lydia McGrew writes:

From Jihad Watch. A man in East Lansing, Michigan “burned and desecrated” a Koran and then left its poor, mutilated corpse in front of a mosque. The police offered a $10,000 reward for information leading to his arrest and prosecution! They have now found him. He turned himself in and is cooperating with the FBI. (The FBI?) They haven’t yet decided whether they will file charges. As Robert Spencer says, what charges? Littering? One of Spenser’s readers (the reader who brought the story to Spenser’s attention) called up the Lansing police department and asked what law this man is supposed to have broken. He couldn’t get any answer.

This is becoming truly insane.

LA replies:

I assume the charge would be … uh … uhmm … I was going to say something like “religious hatred” or “intimidation,” but we don’t have hate crimes in the U.S. apart from an underlying criminal act, such as physically assaulting someone or vandalizing a building. And since the Koran burner only destroyed his own property, which is not a crime, Spencer is right that one cannot think of any crime he has committed other than littering. However, littering is not nothing. Littering is against the law. But at most it is a misdemeanor, not a felony (though it’s probably not even a misdemeanor but just a violation, the equivalent of a parking ticket). So perhaps the police are charging him with a hate misdemeanor.

LA continues:

Now Michigan has a crime called ethnic intimidation, but, just as I thought, for this crime to have taken place, there must be an underlying crime against person or property:

The Michigan Penal Code
Sec. 147b.

1. A person is guilty of ethnic intimidation if that person maliciously, and with specific intent to intimidate or harass another person because of that person’s race, color, religion, gender, or national origin, does any of the following:

1. Causes physical contact with another person.

2. Damages, destroys, or defaces any real or personal property of another person.

3. Threatens, by word or act, to do an act described in subdivision (a) or (b), if there is reasonable cause to believe that an act described in subdivision (a) or (b) will occur.

At first glance there’s nothing there for the police to charge in this case. But now look more carefully at paragraph 3. The act of burning one’s copy of the Koran outside a mosque and leaving the charred remains there could perhaps be construed as an act that gives reasonable cause to believe that the Koran burner is next going to attack the mosque itself, and thus burning the Koran and leaving it in front of a mosque could be construed as an act of threatening to perform an act of ethnic intimidation, and, according to paragraph 3, the act of threatening to perform an act of ethnic intimidation, when there is reasonable cause to believe that such an act will be performed, is itself an act of ethnic intimidation.

That seems a stretch, but it’s probably what the prosecutors are working with.

- end of initial entry -

An Indian living in the West writes:

It is one thing to burn a Koran in your backyard and quite another to burn it in front of a mosque where it could be an incitement to violence. Freedom of speech does not imply a right to incite violence or the right to disrupt public order.

But one could say that if this was done in front of a church or a synagogue, it wouldn’t lead to violence, so why should it …

But then the same argument also applies to burning it in your backyard or drawing a Muhammad cartoon …

The problem is that once you have exceeded a certain threshold of Muslims as a percentage of the population, minor little acts can be seen as “incitement to violence” and disruption of public order. Freedom of speech disappears very quickly.

By the way, do you know which country first banned Salman Rushdie’s Satanic Verses? Not Iran or Pakistan or Saudi Arabia but India. India has a “right to Freedom of Speech” in its constitution. But it is almost meaningless. This despite the fact that Muslims constitute less than 20 percent of the population. But India’s dhimmi politicians are forever ready and willing to prostrate themselves before the Islamic lobby. And of course, the mullahs are ready at the drop of a hat to call for the blood of anyone who offends them.

Actually for all Western countries now merrily importing Muslims in large numbers, India is a useful template to look at. What happens in India is that Muslims tend to vote as a block. Therefore, the political party that prostrates itself most willingly and makes the biggest electoral concessions to them is the one that gets their vote. Historically, the dhimmi Congress Party has got about 90 percent of the Muslim vote in key states (though it has never won even 50 percent of the total non-Muslim vote in any major state). You will see this phenomenon in Europe and America too. After a certain threshold is crossed, any party that is perceived to be “hostile” or “unfriendly” simply cannot win and becomes unelectable.

LA replies:

Your last point is especially important. People say to me, “How can Islam be a threat, how can sharia rule be a threat, when Muslims are just one percent of the population?” Well, you’ve just shown how. Once it’s established that in closely divided elections the Muslim vote, small though it is, is decisive, the major parties will vie for the Muslim vote, and to have a chance to win the Muslim vote they must support the Islamic program. Thus even with a very small Muslim population, a pro-sharia, pro-Islamic politics can be put in place and no one will be able to dislodge it.

LA continues:

And your initial point is also worth repeating:

“It is one thing to burn a Koran in your backyard and quite another to burn it in front of a mosque where it could be an incitement to violence. Freedom of speech does not imply a right to incite violence or the right to disrupt public order.”

To burn outside a house of worship the scripture of that religion is certainly an extremely aggressive act and could reasonably be seen as an incitement to violence and as a disruption of public order. I have no idea what the precedents are in this area. But, at the least, it seems to me that Lydia McGrew’s comment that it is “insane” to arrest a man for burning a Koran outside a mosque is overstated. There would appear to be reasonable grounds for viewing such an act as a crime or saying that such an act ought to be a crime. Whether such an act is in fact a crime under our laws or should be made a crime under our laws is another question. However, I would assume that in most American communities throughout our history, if a person burned a copy of the Book of Common Prayer outside an Episcopalian church, or burned a copy of the Bible outside any Christian church, or burned the Jewish Bible or the Torah outside a Jewish synogogue, such an act would be treated by the local authorities as an attack on public order or as a crime of some kind. I may be wrong, but that’s my guess.

Thus in my comments in this thread, I have been moving steadily toward the view, or rather the guess, that it probably is a crime to desecrate a religious scripture outside a house of worship of that religion.

Indian living in the West replies:
It is an extreme act—and it is in a public place. So that makes it more extreme than burning on private property.

But if we believe in the rule of law, there has to be a specific offence in an applicable statute under which such an act could be booked as an offence leading to an arrest. Otherwise, this leads to a slippery slope and gives police discretionary powers which are open to abuse.

Also, if burning a Koran can lead to violence and therefore is a crime, why not burning an American flag or burning the Bible or immersing the Cross in a jar of urine? The American left championed the cause of every anti-American and anti-Western political movement in the last century. It now finds itself tied up in knots about Koran burning.

LA replies:

Burning a U.S. flag in public is also an extreme act. But it is an act directed, as it were, against America as a whole, or against the government as a whole. There is not a discrete community that would be reasonably intimidated and threatened by the act of a flag being burned.

But burning a Bible outside a church or a Torah outside a synagogue would be an act of intimidation against a discrete target, a discrete religious community, and so is not like burning an American flag and could be seen as an act of intimidation or as an attack on public order in a way that a flag burning would not. Everything I’m saying is nothing more than reasoned speculation. I do not know if such acts of burning sacred books in front of houses of worship have occurred in our history and how they have been treated under the law.

Now I do believe that burning the American flag in public ought to be against the law, that is, against the law of a municipality or a state, and, as I remember, when such local laws were overturned by the U.S. Supreme Court some years ago, I supported a constitutional amendment to make such anti-flag burning laws constitutional. Does that mean that, in order to be consistent, I should also support laws against burning sacred books outside a house of worship? Again, we have to remember that this is a local matter, not a federal matter. Or, if we hadn’t had the U.S. Supreme Court’s revolutionary Incorporation Doctrine which gave federal courts control over such local issues, it would be a local matter. And if it were a local matter, and I were voting on the local laws for my community, yes, I would favor making it a violation of some kind to burn a sacred book of a religion outside a house of worship of that religion.

But that gives rise to another speculation in this speculative discussion. If we were truly living under the correct and original Constitution, without the Incorporation Doctrine (which, by applying the First Amendment to the state legislatures as well as the Congress, gave federal courts power over state and local governments in the areas of freedom of speech and religion), states could have their own laws regarding religion. Under the original and correct Constitution, sans Incorporation Doctrine, a state could outlaw any religion it wanted to outlaw. It could outlaw the Jewish religion, or the Mormon religion, or the religion of Islam. Now I don’t think that any state of the U.S. has in fact ever outlawed a religion (except perhaps Mormonism in some instances in the 19th century), but, under the true U.S. Constitution, a state could outlaw a religion, and the U.S. Constitution and the federal courts would have nothing to say against it. It should always be remembered that for the first few decades of America’s existence under the Constitution, many states had their own religious establishments (that is, a religious denomination favored by the state to which a person had to belong in order to be elected to a state office), and their own religious restrictions. As an example of the latter, in a few states, you had to believe in the Trinity in order to be a voting citizen (thus excluding Jews from the franchise), or you had to believe in God (thus excluding atheists from the franchise). But no state, to my knowledge, ever outlawed a religion. By the mid 19th century, all these state religious establishents and restrictions had been ended, by the states themselves.

In any case, perhaps that is the way to get Islam out of our country. Get rid of the Incorporation Doctrine, and the individual states could then outlaw Islam. But of course getting rid of the Incorporation Doctrine at this point would be as momentous and difficult as passing an amendment to the U.S. Constitution outlawing Islam….

LA continues:
“Also, if burning a Koran can lead to violence and therefore is a crime, why not … immersing the Cross in a jar of urine?”

Andres Serrano did not stand in front of a church and place a Cross with the figure of Jesus on it into a jar of urine. He performed this act in his studio, and took a photograph of it. The photograph was then shown in various museums. I’ve seen the photograph myself in a gallery. There wasn’t much risk of museum goers suddenly rioting against churches or committing acts of violence against Christians (though, as Wikipedia reports, “The work was vandalized at the National Gallery of Victoria, Australia, and gallery officials reported receiving death threats in response to Piss Christ.”) So there is not much analogy between Piss Christ and burning a Koran in front of a mosque.

The main issue with Piss Christ was that Serranno was paid in part for the work by the National Endowment for the Arts.

“GK Ghesterton” writes:

You write:

“In any case, perhaps that is the way to get Islam out of our country. Get rid of the Incorporation Doctrine, and the individual states could then outlaw Islam. But of course getting rid of the Incorporation Doctrine at this point would be as momentous and difficult as passing an amendment to the U.S. Constitution outlawing Islam…. ”

Is it not far more likely that such a change would rather result in stringent laws against “defaming religion”, “hate speech”, etc. given how the current ideological climate looks in the US?

LA replies:

I must say, this is the sort of comment that comes up endlessly in some conservatives’ conversations, which become endless catalogues of how we can’t do anything because the left will do such and such to us, and then the left will do such and such to us. Such conservatives need an injection of Ulysses S. Grant: let’s focus on what we’re going to do the other side, rathern than on what the other side may do to us.

David P. writes:

Insane did you say? Then how about this

Two Gateshead men arrested for watching 9/11 Koran burning video

Just for watching it on the Internet! Truly Orwellian.

September 21

Lydia McGrew writes:

My impression from the original story Spencer linked is that the Koran was simply found outside the mosque. Now stories are saying that he “burned a Koran outside a mosque” or is “suspected” of doing so, but the impression I get is that no one actually knew that he did so (even if he did) and that his goal was simply to leave the burned Koran in front of the mosque. This can hardly be regarded in either event as an attempt to incite a crowd (or anyone else) to violence. If he burned the Koran at his own home and literally simply set it down on the steps of the Koran, the end result would be the same as far as public knowledge, etc. I stand by my statement that it is insane to arrest someone for that, much less to offer a $10,000 reward for information leading to his arrest. This point dovetails well with the fact that the police could not even say what crime he might be charged for.

LA replies:

I’m not sure I’m in agreement. To leave outside a house of religion the charred by identifiable remains of that religion’s holy book, could readily and reasonably be seen as sending a threatening message: “I’ve destroyed your holy book, and next I’m going to destroy your house of religion, and next I’m going to destroy you.”

Lydia McGrew replies:

I think your take on leaving a burned Koran on the steps of a mosque (that it is reasonably interpreted as threatening) is interesting. Question: Would you say the same about leaving a piece of ham on the steps of a mosque? I think doing so is juvenile and find it somewhat difficult to imagine circumstances where it would be excusable, though perhaps if the mosque members had been trashing the neighborhood and behaving in threatening ways toward the local people it would be somewhat understandable as a response, and a fairly mild one at that. But whatever one says about it, it certainly doesn’t seem like a threat and should not receive the response that would be given to a serious crime.

A couple of years ago a case was reported in which someone at a public school (a high school, I believe) put a piece of ham on the table in the cafeteria where a group of Somali Muslim students usually ate. It was investigated by the police as a possible “hate crime.” This was crazy, right? It ought to be possible to make a distinction between juvenile and insulting behavior on the one hand and criminal behavior on the other hand.

I’m concerned that if laws against littering, for example, or concepts of “threatening” are used to justify exaggerated responses to insults to Islam, we could be looking at a situation where keeping pigs next to a mosque on your own property could be treated similarly, especially if the pig owner made it clear that he was doing so to make a statement against Islam or sharia. It seems to me that the response to what this Koran burner did (leaving the burned book at the mosque) is likely to mean that every potentially applicable law, however trivial or vague, will be brought to bear to justify treating as seriously criminal any behavior seen as insulting to Islam. Even if the behavior seems inappropriate to us as well, we need to keep an eye on exaggerated responses. I think Robert Spencer is correct to mock the response as over-the-top.

LA replies:

We were discussing a particular situation and tryinig to understand it and what the law does say and should say about it. I don’t see that shifting the topic from what actually happened, leaving a charred Koran at the door of a mosque, to such a silly example as leaving a piece of ham at the door of of a mosque, is helpful to the discussion.

D. from Seattle writes:

I think Lydia was trying to illustrate a logical progression, as in “If A is OK, then why not B? And if B is OK, why not C?”, and in that sense, I do believe that her example is helpful to the discussion. And if our goal is to remove Moslems from the U.S. (and from the West and other non-Islamic countries in general), then I believe offensive but non-violent means are a perfectly acceptable way to do that, even if not legally sanctioned. Would you rather offend Moslems into leaving, or having to remove them by force? Or to quote Ulysses S. Grant again: let’s focus on what we’re going to do the other side, rather than on what the other side may do to us.

LA replies:

The topic of this discussion is not how to make Muslims leave America. The topic is whether it is illegal or should be illegal to perform the type of act the man in this story performed. It’s difficult enough to understand that question, without resorting to a bunch of imaginary acts that no one would do and wondering if they are illegal too. Does the extremely speculative ham example help us understand the legality of the actual burning Koran situation? No.

Why this matters is, we want to find ways to express our opposition to Islam that are not illegal and that won’t get us fired from our jobs, unless that is something that we want to happen. So for example, if you work for a government agency, you may not want to burn a Koran as Derek Fenton did in New York City, because he lost his job with New Jersey Transit, which may not have happened if he was working for a private company, as Dean Ericson (Dean E.) discussed here. Similarly, if you burn a Koran in front of a mosque, you might be arrested, while you’re much less likely to get arrested if you burn a Koran in your back yard and tape it and post it on the Web. It depends on what one is trying to achieve. Some people may want to get arrested, as an act of protest. Others may not. But I assume that most people would not want to get arrested and therefore it is useful to know how far one can go in performing expressive acts against Islam without breaking the law. That is my particular interest in this discussion.

And this website is not about promoting illegal acts. I’m not saying that illegal acts against a tyrannical government may not become necessary at some point, but that’s not what this website is about.

D. from Seattle replies:

Got it, thanks for clarifying. I am not for promoting illegal acts either, which is why I used the phrase “not legally sanctioned” to mean acts that are, as presently understood, in the gray zone, i.e. there is no general agreement if they are legal or not. Also agreed that clarifying which acts are legal and which are not, while of course trying to escape the leftist/totalitarian definition of what is legal and allowed in a society, is a very useful tool for traditionalist conservatives to take back the country, street corner by street corner.

Lydia McGrew writes:

The original discussion centered on whether leaving a burned Koran in front of a mosque is illegal. It appears that whether it is or not will depend on whether it is taken to amount to a threat, and whether taking it to amount to a threat is or is not reasonable. I realize it isn’t entirely possible to get away from such judgment calls in life and in law, but this particular one I find troubling, because I rather doubt that the person in question intended it as a threat as opposed to a protest, and I worry about the consequences of the police being quick to interpret such things as threats.

In any event, I brought up the ham example because I can well imagine that someone would do it, especially if a particular mosque were especially unpopular because of its effect on the community. And that act certainly should not be investigated with a $10,000 reward, etc., much less by the FBI. In my opinion, leaving a piece of ham by a mosque should not be illegal beyond some extremely minor fine for littering, which no significant amount of public money should be spent to enforce and collect, any more than it would be if someone left some other irrelevant and harmless object on the mosque steps. And probably, it is not formally any more illegal than that except by a creeping expansion of “hate crimes” laws and notions of “threatening actions.” Again, I bring this up because I doubt that it will be purely hypothetical in the long term. And indeed, among kids something like it evidently has already happened; childish prank, to be sure, but not something for the police to investigate. I also bring it up in this context because it seems to me that the public is getting the idea that insulting Islam is illegal per se, and the $10,000 reward for the man who left the burned Koran serves to reinforce that impression.

As far as losing jobs: Some people can lose their jobs for conservative blogging. Of course, it’s legitimate for them to take that into account and not blog if they have a family to support, but that doesn’t make it legitimate for their bosses to fire them. You praised and honored the man who lost his job with New Jersey Transit.

LA replies:

Thanks for the clarifications.

Regarding Mr. Fenton from my native state of New Jersey, I said I praised and honored him for his act of protest and for the dignity and aplomb with which he carried it out. I didn’t praise him for being fired. I was upset by that, and saw it as a defeat for our side. I want us to be able freely to express our opposition to Islam, in a creative variety of ways, including Koran burning, and therefore I want us to know what the ground rules are, so that we can avoid repercussions if that’s what we want.

Posted by Lawrence Auster at September 21, 2010 01:03 AM | Send

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