The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A Justice Department news release headline from Tuesday reads:
Former Springfield, Missouri, Man Pleads Guilty to Defacing Islamic Center and Burning the Qur'an
Unsurprisingly, the headline has been picked up in other places, such as this UPI story.
But wait: How can someone be charged for burning a Koran? Nor was there any indication that he burned one of the Islamic Center's own Korans (which would be vandalism, like the defacing of the Islamic Center). Wouldn't burning a Koran be protected by the First Amendment, like burning an American flag?
Well, yes, it would be, and it looks like the guilty plea isn't to burning a Koran as such—it's essentially to threatening people in a note accompanying the burned Koran. The man (Adam David Smock) was charged with "participating in a conspiracy to oppress, threaten and intimidate worshippers at the Islamic Center of Springfield in the free exercise and enjoyment of their constitutional right to the free exercise of their religious beliefs." The "oppress" doesn't have much independent meaning in this context; rather, the charge is that he was threatening worshippers with violence—as the plea agreement says, "[t]he defendant … admits" that he acted "to threaten and intimidate worshippers."
And there were indeed statements that could well be threats accompanying the burned Korans:
Smock also admitted that on April 10, 2011, he and the same two individuals partially burned two copies of the Qur'an, the Muslim holy book, and Smock left the burned Qur'ans directly in front of the main doors to the Islamic Center, approximately 30 feet away from the building, where a co-conspirator also left a computer-printed note that contained the image of a goat's or ram's head, and the following text:
"To: Sincere Followers of Allah,
"Today, we show the Muslim Nation that its oppressive religion won't go without a fight, not from soldiers, but from average citizens willing to fight for America—for there are three (sic) burned Qur'ans that lay spread in the driveway. For we grow tired of Anti-Zionism. The Islamification of Europe. Terroristic regimes. And worst of all, the membership of 1.5 billion Muslims that stain the earth. And we vow one thing: Islam will not survive.
"Death to Islam!"
A reasonable person might well see "Death to Islam," in the context of "Muslims" "stain[ing] the earth," coupled with the vandalism of the mosque, as a threat of death (or some violence) to Muslims as people and not just to Islam as an ideology. And recall that Smock in the plea agreement admitted that he had the intent to threaten.
So it's not the burning of the Korans that was the crime: it was the threatening speech, which would have been criminal threats even if it had just accompanied the vandalism, with no burned Korans left on the scene. The prosecution seems sound, but the headline on the news release strikes me as misleading. Consider as an analogy, for instance, a release saying "Man pleads guilty to defacing U.S. Army recruiting office and burning the American flag," where in fact the man pleaded guilty to trying to threaten violence against recruiters in a note accompanying the burned flag (and in the defacement of the recruiting office).