Religious Crimes and Free Speech: From Pussy Riot to Fellatio with Jesus Statuary, the Controversies Keep on Coming

Whenever religion becomes involved, sophomoric stunts by 14-year-old boys become no laughing matter to the offended.
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Consider it a Pussy Riot-like controversy of a very different kind, with the hullabaloo this time not transpiring in Vladimir Putin's Russia, but in the Alleghenies of Pennsylvania and without any of the trappings of a protagonist making some larger political or religious statement.

As will be recalled, several members of Pussy Riot, an all-female feminist punk band, were arrested in February 2012 and convicted of "hooliganism motivated by religious hatred" after they performed a so-called punk prayer against Putin and the Russian Orthodox church on the altar of Moscow's Cathedral of Christ the Savior. Two members were later granted amnesty in advance of the 2014 Winter Olympics in Sochi.

Fast forward some 30 months, and by now you've probably heard of the criminal charges filed against a 14-year-old boy in Everett, Pa. He staged of photo of himself with a statue of Jesus in which the kneeling religious figure appears to be performing oral sex on the boy.

As the New York Post wryly observed about the fake fellatio, "this is definitely NOT what Jesus would do." The photo is found here on the Huffington Post, which -- not to be outdone by the Post -- queried whether the boy would "get punished for coming to Jesus?"

The young lad now finds himself in a prickly situation, facing a stiff sentence in Bedford County of two years in a juvenile detention facility for desecrating a venerated object under a Pennsylvania statute. That statute provides that a person commits a second-degree misdemeanor if he "intentionally desecrates any public monument or structure, or place of worship or burial."

What, in turn, does desecrate mean? The statute defines it as:

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.

The boy in Everett did not physically damage the Jesus statue, so the only harm is mental and emotional -- it is the harm of offense. The key part of the statutory language thus is the subjectively vague phrase "outrage the sensibilities of persons."

What is outrageous to one person, of course, may not be to another person. As the U.S. Supreme Court famously wrote in 1971 in the case of Cohen vs. California when protecting a man's First Amendment right to wear a jacket in a public courthouse emblazoned with the words "Fuck the Draft"

while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

In legal terms, the phrase "outrage the sensibilities" is subject to what is known, somewhat ironically in this instance, as a facial challenge under the void for vagueness doctrine. That doctrine ask whether a person of ordinary and common intelligence would understand what would cause outrage.

Religion, of course, is central to Pennsylvania kerfuffle. Law professor Jonathan Turley of George Washington University astutely observes that the:

fact that this was a religious statue seems to be motivating the charge. It seems unlikely that the teen would have been charged in the same way with a frog or dog statue. None of these excuses his actions, of course. His conduct was obnoxious and disgraceful. Unfortunately, those terms could be in the dictionary under "teenager."

Whenever religion becomes involved, sophomoric stunts by 14-year-old boys become no laughing matter to the offended. According to a story in the Altoona Mirror:

While police released few details and didn't mention the juvenile's name, the Bedford County Free Press -- an online news organization that shares police reports and gossip -- first discussed the case last month, posting the photos and sharing the child's name and hometown.

Hundreds of comments followed, many from outraged county residents. Several posted violent threats. A new post on the charges has drawn more threats.

Such threats of violence are a sad commentary on intolerance and, frankly, don't fall too far from the Putin tree. Ultimately, the actions of the boy in Everett, Pa. are silly, foolish and juvenile, but criminal they are not.

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