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Where Bill Higgins Shows He Has no Understanding of the First Amendment

September 15, 2014

14-year-olds do dumb things.  Let’s lay that out on the table to start with. In this case, a teen thought it would be funny to simulate having oral sex with a Jesus statue.   That was dumb.  But the reaction of the police and Distract Attorney Bill Higgins is not simply dumb– it is offensive to the First Amendment.  They decided to try the teen for violation of  Section 5509 of the Consolidated Statutes which states in part :

5509.  Desecration, theft or sale of venerated objects.(a)  Offense defined.--A person commits a misdemeanor of the
     second degree if he:
            (1)  intentionally desecrates any public monument or
        structure, or place of worship or burial;
            (2)  intentionally desecrates any other object of
        veneration by the public or a substantial segment thereof in
        any public place;
...
"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.

It’s important to note that this statue is likely, at least as it applies to speech and absent any other offense, unconstitutional.  It would be very unwise to hang a charge specifically on the speech aspects…but that’s exactly what Higgins has done.

Don’t take my word for it. Let’s listen to what Mr. Higgins has to say courtesy of kdvr.com:

 

Higgins told the TV station he thought it was important to taken advantage of the legislative powers given him under the rarely utilized law because of how “proud” the teen appeared to be of his actions.

“The only reason that it was done was to offend people,” Higgins said. “If you want to engage in that type of behavior, there are consequences.”

 

Interesting. We don’t hear anything about damage, and we don’t hear about the fact that the owners of the statue have declined to press charges.

There are a few things to note here.

One: The First Amendment has been explicitly defined as protecting offensive speech.  The levels of protection are higher when considering explicitly political speech, but they exist for all forms of speech– including simulating oral sex with Jesus.  In fact, it’s notable that the statute itself stresses physical damage and mistreatment.  It’s unlikely that a symbolic act– which is what we see here, would fall under the statute’s ambit. Interestingly, the most recent case where the statute was used involved a College Student urinating into a nativity scene– which was physically mistreating the scene. Of course, such an act could be prosecuted as trespass or vandalism, which makes one wonder why a specific law is needed.

Secondly, the Lemon Test points out that providing greater protection to a religious establishment or icon is right out.   That includes veneration. In other words, if you’re trying to apply the statute in a way that would protect a Jesus statue where a statue of a non-religious figure would not be protected, you’re likely heading for a slap from the higher courts.

This is especially true since the statute punishes behavior against venerated objects more harshly than other forms of vandalism. As Pathos writer JT Eberhard points out:

 

So let’s say an adult (subject to harsher penalties than minors) elected to spray paint “Jesus loves dicks” on the side of this boy’s school.  That guy, at most (and the “at most” comes in to play for people with previous criminal records, which this boy doesn’t have), would serve a year in jail – and that’s assuming the cost of having the wall re-painted exceeds $150, otherwise the penalty would be less.

But a 14 year-old does something stupid that causes literally zero property damage and he could face two years in juvenile jail because it’s a “venerated object”?  That’s insane.  That’s really ludicrous.

 

And again, at least as applied to religious objects, we’re almost certainly seeing a violation of the Lemon Test.

Speech can be offensive.  I myself am severely offended at people parading around the funerals of American Servicemen cheering their deaths.  Survivors of the Nazi Death camps were offended that  parade of Neo-Nazi’s might take place in their neighborhood.   More prosaically,  Pennsylvania has fought, and lost the battle to be able to control what people name their companies, in this case, “I Choose Hell Productions.”    Punishing speech, be it verbal or symbolic, especially  when it relates to religious matters, naturally comes under the strictest scrutiny.   Mr. Higgins makes it plain that it is speech he is punishing, and that makes it plain that this is unconstitutional on its face.

Speech is one of more most important rights, whether it is burning a flag, denouncing those who burn a flag, writing a decidedly non-PC rock song, or yes, simulating oral sex with a statue.  But we shouldn’t criminalize such actions– all we have to do is look to the rest of the world where blasphemy laws are a thing to realize that there is no good end to that road. Bill Higgens, in his zeal to protect us from speech that is designed to offend people seems to miss the point of the very law he has sworn to uphold.

 

Postscript: Once Again, Bad Legal Reporting

 

Finally, let us once again cry at the state of legal reporting in America, as many news outlets have prominently mentioned that he faces up to two years in prison– yes, it is possible that he could receive two years for this crime.  It is also possible that I could spontaneously combust while I’m typing this post. The fact is that overblown claims like that are simply designed to get extra clicks and generate outrage– which produces comments and more extra clicks.  The truth is that it is extremely unlikely that our performance artist will see more than some community service and a minor fine. However, that is not what is important in this case.  Violations against free speech are violations, whether they involve severe penalties or minor penalties.

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