Volokh's Error: Hate Crimes Legislation

In “The Perils of Hate Crimes Laws” and “The Schmulevich Case—Facts and New York Law, As I Can Best Figure Them Out”, Eugene Volokh gives us a tour of the slippery slope fallacy and a host of legal inaccuracies.

Volokh’s Huffington Post blog gives a brief, inaccurate introduction to the Schmulevich case followed by “hypotheticals that strike [him] as legally analogous to the Shmulevich prosecution.” His more detailed post on the Schmulevich case at The Volokh Conspiracy unfortunately twists reason and the standard interpretations of the law as they are generally applied.

A few too many commenters delve into Mr. Volokh’s motives rather than addressing his arguments, a logical fallacy which I’ll seek to avoid. However, I would like to note, in defense of Mr. Volokh, that I believe it is his misunderstanding of the law that leads to his slippery slope argument not any ulterior motives he may harbor. Because I believe that one follows the other, I’ll begin with the problems with Mr. Volokh’s legal arguments. (For simplicity’s sake, I’ll annotate any quotes from The Volokh Conspiracy piece as VC and the ones from The Huffington Post piece as HP.)

Mr. Volokh’s first problem is that he misunderstands how the law would determine whom would be considered the victim or victims of the crime involved.

“But it's pretty clear that Shmulevich isn't guilty under this provision, because his victim was Pace University, which he didn't choose because of its religious affiliation.” (VC)

Is Pace University the sole victim of the crime? Mr. Volokh’s mistake seems to be in assuming that the victim in a property crime is solely the legal owner of said property. This is not the case. In Mr. Volokh’s defense, this is an easy mistake to make. (In most law books, judicial interpretations and definitions of terms involved in a particular statute may be located in a separate part of the section or code.)

In most legal interpretations, the victim in a property crime can be the legal owner, the person who leases the property, or the person for whom the property is set aside for use. For example, if the KKK vandalizes the home of an African-American family, the family members are considered the victims of that crime even if they’re only leasing the home. In the case of the Schmulevich case, since the “meditation room” was set aside for student use and the Koran was specifically provided for the use of Muslim students, the University’s Muslim students can be considered victims of the crime in conjunction with Pace.

“And there's no damage to premises primarily used for religious purposes, since ‘premises’ means a place (see, e.g., Black's Law Dictionary); the damage here was to a religious book, not a religious premises.” (VC)

Although the basic definition of premises is in fact “a place,” for legal purposes, the term premises can also include a building’s furnishings and contents, especially if those furnishings and contents are directly related to the building’s purpose. In the current case, the Koran would be considered contents directly related to the purpose of the meditation room, so that “damage to religious premises” would apply.

As for the harassment charges, which may or may not be pending against Mr. Schmulevich, we can apply the reasonable person standard. (I’ll note that we’re missing quite a bit of information here, so accuracy is not possible.) Would a reasonable person feel threatened or harassed by Mr. Schmulevich’s actions? We don’t know the contents of the argument or what events provoked it; however, considering that the events in question took place during a string of bias-related incidents on campus and considering that these are Muslim students in post-9/11 America, we can assume that a reasonable person could deem the events to be threatening or harassing.

These misunderstandings lead to Mr. Volokh proposing a variety of hypothetical cases (HP for all) that he believes could be prosecuted under hate crimes laws. Since none of these cases meets the standards set forth in hate crimes laws nor do they logically follow from reasonable interpretation of those laws, the argument falls under the slippery slope fallacy.

For instance, in the hypothetical flag burning case, the victim can only be considered the owner of the flag since there is no one leasing the flag nor is it set aside for anyone else’s use. Unless Mr. Eichman burns the flag specifically as an attack on the owner due to his beliefs with the intent to intimidate him or her, it cannot fall under hate crimes legislation. If Mr. Eichman went on the property of a veteran and set fire to his flag to send a threatening message to veterans, it could be a hate crime.

As for the cross case, we can assume the cross display is the property of the artist. The owner of the public housing project (the state) cannot be considered a victim of a hate crime. The residents may be considered the victims of a hate crime if the display reasonably constitutes vandalism and/or an act of intimidation (such as a Klan cross-burning or a swastika erected in a housing project filled with Holocaust survivors). If the display doesn’t rise to the level of vandalism and the artist’s intent is at worse to offend rather than harass or intimidate, it would not be a hate crime. Trespassing on state-owned property would be related to the hate crime but cannot constitute a hate crime in and of itself.

This last part applies to the minister case as well. Trespassing alone cannot be considered a hate crime. Harassment and intimidation, if they are also involved, could be considered a hate crime. For the minister’s behavior to rise to the level of hate crime, he would not only have to refuse to leave, he would have to harass or intimidate the Episcopal Church leader because of his views or sexual orientation. It’s highly unlikely that merely remaining on the property against the wishes of the owner after being invited in would be deemed a hate crime.

The final hypothetical requires us to consider what might happen if the current laws are extended to the point of absurdity and thus constitutes a slippery slope argument in and of itself.

“Such additional punishment is not, it seems to me, primarily punishment for the crime (since that would have been covered by the unenhanced punishment), or even for the discriminatory selection of a crime's target. Rather, it is punishment for the ideology that motivated the crime.” (HP)

“But it doesn't necessarily follow that the law should be free to increase the punishment not just because the criminal was discriminating in choice of victims, but because the criminal was hostile to some other person based on that person's religion, religious practice, sexual orientation, or race -- which often means that the criminal simply disapproved of some group, even when the target of the crime was not discriminatorily chosen.” (HP)

I can see how Mr. Volokh would believe that based on his misunderstanding of the law and how it applies to Mr. Schmulevich’s actions. However, with the law as it now stands and the relevant situation as it is interpreted under that law, this is not the case.

As many of the commenters point out, hate crimes laws are similar to many other laws that classify particular acts as more or less egregious due to motive or intent. Hate crimes laws are not intended to punish an ideology any more than laws that consider “crimes of passion” separately are intended to punish jealousy.

As Mr. Schmulevich has not yet been tried and the full evidence is not available, we cannot determine his guilt or innocence. However, the evidence as it is known supports a hate crimes prosecution. The targets of the alleged crime were the Muslim students of Pace, who were selected based on their religion and could reasonably interpret the events as a threat against their community.

“For more on the growing movement to specially punish speech that is blasphemous or otherwise offensive based on religion…” (HP)

Considering all of the above, the current situation does not “specially punish speech that is blasphemous or otherwise offensive based on religion.” If it were, that would be a violation of freedom of speech.

UPDATE: Foolish me. I wrote this not thinking about the fact that Mr. Volokh is a law professor. (I'll have to accept the egg on my face for that.) I gave Mr. Volokh the benefit of the doubt on motive and assumed he simply didn't get the particulars of the law as they applied. Taking into account his legal background, I wonder if a.) this isn't his area of practice, b.) he's really not that good at what he does or c.)he's intentionally distorting the legal facts in favor of his ideological stance. None of these things have anything to do with the quality of his arguments, which are poorly constructed and completely unbecoming someone of Mr. Volokh's stature. Just one of those things that make you go Hmmmmmmmm...

UPDATE2: I've been trying to find a web source for the extended definition of premises as it applies here with no luck. I've seen the broader definition used in the legal codes/opinions that I use for the day job, but finding this application when you're looking for it, especially one that you can link too is a bit frustrating. I unfortunately don't have a registration to some of the legal sites where this info could be found via a simple search.

However, consider this: If "premises" is defined too narrowly, a neo-Nazi group could enter a synagogue and destroy the pews, free-standing altar, candelabra, Torah scrolls, etc. and not be responsible for damaging the premises if the building itself is undamaged. Doesn't make sense, does it?

UPDATE 3: Christopher Hitchens has chimed in over at Slate. I wonder how "defenders of reason" like Hitchens can avoid the cognitive dissonance inevitably produced by writing irrational polemical screeds that distort the facts to fit their ideological agenda? Intriguing.