Flag-burning and Freedom
[J.D. Henderson,
Tuesday June 27, 2006 at 8:00pm ]
The Senate (again) almost passed an amendment banning the burning of our flag.
"Countless men and women have died defending that flag," said Majority Leader Bill Frist, R-Tenn., closing two days of debate. "It is but a small humble act for us to defend it."
I never took an oath to a flag, or a geographical location, or to a government, and certainly not to any man or office. Many soldiers around the world have died to protect their flag, but Sen. Frist is wrong. America is different. Unlike other nations, no American soldiers have ever died defending our flag. What they gave all to defend is the Constitution, and it cheapens the sacrifice of our soldiers to claim that they risked, or lost, their precious lives for a mere symbolic piece of cloth. They did not. They served the idea of self-government, and were willing to risk their lives to defend the ideals of our Republic as set down in writing. They defended the freedom to disagree. Including the freedom to, yes, burn the symbol of all we hold true.
The military takes an oath to protect and defend the Constitution of the United States. Each soldier thus takes an oath to defend an idea. What makes America different is that we are not united by a common race, religion or ethnicity, but by the shared idea of self-government as embodied in the Constitution. That Constitution protects speech, especially offensive speech (speech that is not offensive rarely if ever needs protection from governments). Burning the symbol of our freedom is highly offensive, but we are bound by oath to defend the right to do so. Any failure to defend offensive speech might protect the symbol, but would be a violation of the substance.
Political speech is especially protected under our Constitution. Our Founding Fathers engaged in political, symbolic speech on a regular basis during our Revolution. They toppled statutes of King George III. They burned him in effigy. They threw tea in Boston Harbor. They pulled down the British flag and replaced it with various Colonial flags. And yes, they burned British flags. After our hard-won independence, the very first Amendment to the new Constitution protected the right of future generations to challenge the established government by protecting free speech, including symbolic speech such as burning our own flag. They did so because the government should not be able to tell its boss, the People, what to say. We had rebelled against an oppressive, tyrannical government once, and our Founding Fathers wanted to ensure that their new government did not become what they so despised. The way they ensured that was by forbidding the new government to censor the speech of the People - even a despised minority of People. They placed more faith in the People than in any government, including the one they designed themselves. The People and their speech were, and are, superior to the government that serves them. We do not serve the government, it is subservient to us.
It might be only a small, humble act to defend the flag, as Sen. Frist says, but it would be small, humble act against the very ideals that flag symbolizes. Changing the Constitution to prohibit a form of political speech simply because it offends is something we should fear. The same forms of speech were performed by the men who fought our Revolution, and they thought such speech should be protected. Banning the burning of our flag is a turning away from what our Founding Fathers thought important enough to put down in that hallowed document our soldiers swear an oath to defend. The flag is not mentioned in that oath.
Countless men and women have died defending the Constitution and the ideals of self-government it represents. It is but a small humble act for us to defend the Constitution from those who would change the very substance of our nation in order to protect the mere symbol that represents it.
When you see a flag burning, which is exceedingly rare within our Republic, you can and likely will be offended, but you can also be glad that we live in a Republic that does not fear those who disagree with the majority.
The act of burning our flag is reprehensible, but such an act does not threaten our Republic. The act of empowering our government to punish those citizens who symbolically, non-violently disagree threatens ALL. If the people are the sovereign, then the right of people to disagree, including the right of people to offend the rest of us by burning our flag, must be defended. No government should tell the sovereign People what they can or can not say, especially when it comes to symbolic, non-violent acts intended to send a political message.
"Countless men and women have died defending that flag," said Majority Leader Bill Frist, R-Tenn., closing two days of debate. "It is but a small humble act for us to defend it."
I never took an oath to a flag, or a geographical location, or to a government, and certainly not to any man or office. Many soldiers around the world have died to protect their flag, but Sen. Frist is wrong. America is different. Unlike other nations, no American soldiers have ever died defending our flag. What they gave all to defend is the Constitution, and it cheapens the sacrifice of our soldiers to claim that they risked, or lost, their precious lives for a mere symbolic piece of cloth. They did not. They served the idea of self-government, and were willing to risk their lives to defend the ideals of our Republic as set down in writing. They defended the freedom to disagree. Including the freedom to, yes, burn the symbol of all we hold true.
The military takes an oath to protect and defend the Constitution of the United States. Each soldier thus takes an oath to defend an idea. What makes America different is that we are not united by a common race, religion or ethnicity, but by the shared idea of self-government as embodied in the Constitution. That Constitution protects speech, especially offensive speech (speech that is not offensive rarely if ever needs protection from governments). Burning the symbol of our freedom is highly offensive, but we are bound by oath to defend the right to do so. Any failure to defend offensive speech might protect the symbol, but would be a violation of the substance.
Political speech is especially protected under our Constitution. Our Founding Fathers engaged in political, symbolic speech on a regular basis during our Revolution. They toppled statutes of King George III. They burned him in effigy. They threw tea in Boston Harbor. They pulled down the British flag and replaced it with various Colonial flags. And yes, they burned British flags. After our hard-won independence, the very first Amendment to the new Constitution protected the right of future generations to challenge the established government by protecting free speech, including symbolic speech such as burning our own flag. They did so because the government should not be able to tell its boss, the People, what to say. We had rebelled against an oppressive, tyrannical government once, and our Founding Fathers wanted to ensure that their new government did not become what they so despised. The way they ensured that was by forbidding the new government to censor the speech of the People - even a despised minority of People. They placed more faith in the People than in any government, including the one they designed themselves. The People and their speech were, and are, superior to the government that serves them. We do not serve the government, it is subservient to us.
It might be only a small, humble act to defend the flag, as Sen. Frist says, but it would be small, humble act against the very ideals that flag symbolizes. Changing the Constitution to prohibit a form of political speech simply because it offends is something we should fear. The same forms of speech were performed by the men who fought our Revolution, and they thought such speech should be protected. Banning the burning of our flag is a turning away from what our Founding Fathers thought important enough to put down in that hallowed document our soldiers swear an oath to defend. The flag is not mentioned in that oath.
Countless men and women have died defending the Constitution and the ideals of self-government it represents. It is but a small humble act for us to defend the Constitution from those who would change the very substance of our nation in order to protect the mere symbol that represents it.
When you see a flag burning, which is exceedingly rare within our Republic, you can and likely will be offended, but you can also be glad that we live in a Republic that does not fear those who disagree with the majority.
The act of burning our flag is reprehensible, but such an act does not threaten our Republic. The act of empowering our government to punish those citizens who symbolically, non-violently disagree threatens ALL. If the people are the sovereign, then the right of people to disagree, including the right of people to offend the rest of us by burning our flag, must be defended. No government should tell the sovereign People what they can or can not say, especially when it comes to symbolic, non-violent acts intended to send a political message.
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I would say, though, that I am not so eager to equate "flag burning" with "speech". It is, of course, expressive activity. But virtually any physical action can be undertaken for expressive purposes -- indeed, the basic point of civil disobedience is that physical action resulting in lawbreaking can be undertaken for expressive purposes. Someone might smoke pot as a means of protesting the war, or simply of protesting bans on smoking pot -- in such a case, it would be a "symbolic, non-violent act[] intended to send a political message." But we would not excuse the violation of that law simply because such activity was "expressive."
Virtually no one believes that the freedom of speech is unlimited -- we prohibit speech all of the time. I see even less reason to assume that freedom of "symbolic, non-violent acts intended to send a political message" should be any less uninhibited, where circumstances so warrant. But here, I don't think that circumstances so warrant.
So I suppose that this time, you and I are "concurring in judgment."
Courts have held repeatedly that some acts are speech. Some aren't, but some are. Flag-burning is clearly political, for if it is not, it then is merely burning cloth, something entirely permissible. If you can burn a cloth and not get arrested, but can't burn a cloth that looks like our flag without being arrested, then what was banned was an act of speech, not an act of burning.
I do oppose hate-speech laws. I do not agree that campaign finance laws are per se a regulation on "speech," but they are a very tricky area. I think we need campaign finance reform and campaign finance laws, but I think they are very dangerous. It is dangerous not to have them too, though. IMHO.
I have no absolutist position. I understand the "yelling fire in a crowded theater" argument, as well as time, place, and manner restrictions. I took First Amendment Law with Eugene Volokh (of the Volokh Conspiracy), and it is impossible to be an absolutist in his class. Rightly so.
However, the clearly political act of flag-burning being made illegal seems to be a case of purely political speech being banned for no other reasons than that it offends.
Your take on campaign finance restrictions is curious: I'd say that the act of donating money to a campaign is as laden with political import as is the burning of a flag. What if I wanted to donate money as a symbolic act? Shouldn't it be afforded the same protection afforded the act of burning a flag.
I just don't think you're squarely confronting my point. Under your theory, shouldn't ALL nonviolent action undertaken for purposes of political symbolism be protected under the First Amendment? What of my pot-smoking example? Or what of the case of a someone who wants to be naked in public as a political act? Or what of a couple that wanted to engage in sexual intercourse in public? (Think back to "Make Love Not War," and John Lennon's rallies.) Should all of these give rise to First Amendment protections?
Under my theory, should ALL nonviolent action undertaken for purposes of political symbolism be protected? No.
Smoking pot is not merely an act - if you do it privately it is still illegal. It is not the message, it is the act that is banned. To demonstrate the difference, you are free to loudly proclaim you should be allowed to smoke pot. You are not free to smoke it. The act of smoking is not speech.
Someone who wants to be naked as a political act is not protected from laws banning nudity in public. Those charged with conspiracy do not have a First Amendment defense. The act of ordering someone to commit a murder does not mean that a good defense at your murder trial is to claim free speech protection. When you enter a bank and tell the teller to "give me your money or I will kill you," do not depend on the First Amendment to keep you out of jail.
There is a lot of case-law discussing the difference between acts and acts-as-speech. I won't belabor them here because they are not my point.
A simple test: if you burn a picture of Osama and that is legal, but are not allowed to burn a flag at the same time, same place, all other facts are the same but the only difference is what you burn, then that is an act of speech. What you did (burning) isn't as important as what you said in doing it.
Please, let's not get confrontational. I clearly studied the First Amendment (and several other amendments) in law school.
I think that this back-and-forth is helpful to develop more finely your take on the issue. Here's what you said in your original post:
"No government should tell the sovereign People what they can or can not say, especially when it comes to symbolic, non-violent acts intended to send a political message."
Your most recent point represents a stark departure from that statement. To the extent that you're not dodging my hypothetical by refusing to consider a case where the act is undertaken for purely political purposes, you make quite clear that even purely symbolic action can be punished despite the First Amendment.
I'm a bit confounded by this line: "Smoking pot is not merely an act - if you do it privately it is still illegal." Isn't that circular reasoning? If flag-burning were banned, then flag-burning would be illegal, even if done in private. Likewise, under a regime where flag burning was illegal, you'd still be able to loudly proclaim that you burn flags. In sum, I'm not sure how that answers the question.
You say, "There is a lot of case-law discussing the difference between acts and acts-as-speech. I won't belabor them here because they are not my point." But I guess I just don't think that that answers my question. As I said, I'm curious why your reasoning wouldn't apply to other actions when such actions are undertaken for purely political purposes. The burning of a flag can in fact be prohibited. The First Amendment wouldn't protect someone who chose to burn a flag in a crowded theatre (regardless of whether you own the theatre, or whether no one gets hurt in the blaze). Flag-burning is only protected under certain circumstances. So why shouldn't public nudity or pot smoking likewise be protected under certain circumstances.
If your position really boils down to the fact that flag-burning is special because the Supreme Court says its say, would you change your mind about the constitutionality of flag-burning if the Supreme Court reversed its flag-burning case law?
Smoking pot is not speech. My reasoning concerning "purely political purposes" would not allow somebody to shout down their opponent at a rally held by their opponent, despite the "purely political purpose" of such a dirty trick. They would be subject to arrest. However, they would be subject to the same arrest if all they shouted were gibberish.
I do not agree with your reductio ad absurdum exercise. If you took First Amendment Law and went to law school, as you admit, then you are merely being difficult and you know full well that your questions raise numerous points on numerous issues and concern numerous cases decided over many years. I suspect you are merely trying to discredit my argument by engaging in word play, rather than addressing the argument itself.
My "take on the issue" concerns amending the Constitution and the freedom to offend others through symbolic speech. It does not involve smoking pot, nakedness, John Lennon, or any of the other hippy-dippy items you mentioned. There are reasons to ban smoking pot that do not concern free speech. We have laws regarding public nudity not related to free speech. We have laws regarding public intercourse not related to free speech. We have time, place and manner restrictions that ban some forms of speech at some places and some times, and that are not a violation of the First Amendment. If you can not tell the difference between burning the flag as speech and public intercourse, well, hmmm... if it burns and hurts a lot, it is probably the former. Pull out and seek first aid immediately.
My post involves only the attempt to change the Constitution by amending the First Amendment so that we can be "protected" from those deluded few who want to burn our flag.
I think the Supreme Court was right that burning the flag is protected speech. My circular logic is I agree because it is speech. Thus I would not "change my mind" if the Supreme Court reversed itself. I would instead weep for our Republic.
And I am quite sure our Founding Fathers didn't engage in public sexual intercourse to protest King George III or the Stamp Act.
You don't actually think flag-burning is "speech." You think it's "expressive activity" that is under certain circumstances protected by the First Amendment's provision for the protection of speech. (Again, as I noted above, flag burning may be prohibited for non-expressive purposes.) But if you're not willing or able to explain what that conduct is, under certain circumstances, protected by the First Amendment while other conduct, under the same circumstances (i.e., where it is undertaken for purely expressive purposes), then perhaps you'd best not spend so much time challenging my credentials as a graduate of law school.
If your view that flag burning is "speech" comes not from the Supreme Court's position but from your own, then I'm not sure why you keep defending your position by noting that "courts have held repeatedly that some acts are speech." If you argue that flag burning is "speech" because it is expressive, then you need to find a way to distinguish the other activities I noted when those activities are undertaken for expressive purposes.
There are plenty of reasons to ban flag burning. You would oppose a ban on *all* flag burning because you think it would unduly limit the subset of flag burnings that implicate expressive activity. But why wouldn't you oppose the other hypothetical bans for the same reason, if such a ban would also implicate expressive activity?
I agree with you that our Founding Fathers didn't engage in public sex to protect King George III. Of course, nor did they burn crosses, or engage in nude dancing, or print pornography for those purposes. Such activities were not, at the inception of the First Amendment, within the protection of the First Amendment, yet they now are, under certain circumstances.
Basically, your position comes down to gut calls and shades of degree. Which I think is perfectly fine. But it's a point on which reasonable minds can disagree; I draw my bright line elsewhere, I don't think that the expressive act of flag burning is "speech". But surely we can disagree without you going out of your way to get personal about it, right?
A couple of days ago, I sent the following to one of my senators after I learned she supported this amendment:
"Dear Senator Feinstein:
"It's recently come to my attention that you are supporting Senator Hatch's effort to amend the Constitution to allow Congress to prohibit burning of the U.S. flag. I understand why you are doing this and I applaud you for your patriotism. However, well-intentioned as it may be, this amendment is misguided. And I will tell you why.
"I am a retired U.S. Army officer and Vietnam combat veteran. I am also a member of the Military Officers Association (MOAA). In 1999, based on an email I had sent, Lieutenant General Mike Nelson, then president of the association, asked that I write a piece in opposition to the association's support of Senator Hatch's attempt to amend the Constitution to ban flag burning. My piece was subsequently published in the association's monthly magazine in a point-counterpoint format with Senator Hatch.
"The points I made in my piece were valid then; they are equally valid now. For 200 years, I, and those like me have gone to war to preserve the freedoms we Americans enjoy. Foremost among those freedoms is the absolute right to protest and do everything within our powers to influence and/or change governmental action. Flag-burning is the ultimate protest against governmental action and I am confident that our Founders, although they wouldn't have liked it, would have understood why it needs to be protected. There is no other reason to burn a flag than to protest governmental action. I also asked exactly what Senator Hatch was afraid of: did he really think that flag-burning weakened this great country?
"I am quite frankly mystified as to how, you, a champion of free speech, a supporter of other issues with which I agree, e.g., gay rights, etc., have now somehow found it necessary to limit freedom of expression in order to guard against the burning of a piece of cloth.
"I took a lifetime oath to defend the Constitution of the United States. Nowhere in my oath is there anything about a symbol, a piece of cloth. Schoolboys may recite the pledge of allegiance, a meaningless marketing slogan; my pledge is far more substantive and serious. You've taken the same oath that I've taken. I ask that you consider what it means.
"I'm very disappointed to learn of your support for this amendment, which would place this country in the company of such stalwarts of democracy as Cuba, Iran and China. That's right. Those are the only countries that now ban flag burning. I urge you to rediscover your confidence in this great nation and give more thought to your support of what is ultimately a repressive action and unworthy of us as Americans. I also urge you to reject what's popular in favor of what's right. This is a repressive measure.
"Incidentally, military officers supported my position against a flag burning amendment vice Senator Hatch's position by an 8-1 margin. I like to think we know what's important."
JD, if you recall, I sent you my write-up on this issue some time ago. The most important thing about my 15 minutes of fame was what I told Feinstein: Military officers supported my position by an 8-1 margin. Today, I heard that fool Jim Bunning—great pitcher, but Kentucky deserves a better senator—proclaim that flag burning "dishonors the troops." Like he and a lot of his ilk know anything about a troop.
Adam, what is it about freedom that you people fear so much?
Adam,
The attempt to amend the Constitution today had nothing to do with a debate about when expressive conduct can be considered speech.
My refusal to engage in word games with you does not mean I am unable to explain, but assumes you have read and understand the relevant cases that make up the body of First Amendment law that would be covered in most First Amendment law school courses. If you have read and understood the material, then you can answer your own questions. I assumed you have done so, and thus I do not think I challenged your law school credentials.
Adam says No, I disagree. First, I didn't argue that flag burning is speech. The debate in the Senate today was not about whether flag burning is protected speech. The Supreme Court has said it is, and the Senators do not disagree that it is speech - they disagree on whether that speech should be protected. Arguments about whether banning flag-burning means pot-smoking as a political statement would likewise be protected are simply inane.
Secondly, no, Adam, I do not need to distinguish those other activities, as you say. You want me to do so, but my post was not about definitions of speech or distinguishing other expressive activities. It was about today's attempt to amend the Constitution in order to prohibit flag-burning.
Adam continues I do not think my position comes down to gut calls and shades of degree. You may think so, it is your perogative.
Whether you agree that flag-burning is "speech" is highly irrelevant to the entire topic. It has been found to be protected speech by the Supreme Court of the United States. With respect, I defer to them. Flag-burning is therefore protected speech. Smoking pot is not.
The Senators who voted to amend the Constitution sought not to overrule the Supreme Court, but to limit the First Amendment when it comes to flag-burning as speech. Your entire line of questioning misses the point entirely. The post was not about debating whether expressive conduct is speech, but you insist I should do so.
I respectfully decline.
Should burning or desecrating a Confederate flag be a mere "act" that can be regulated or banned? Is there anyone who does not recognize that burning or desecrating a Confederate flag would send a political and/or social message? In point of fact, several southern states criminalize desecrating Confederate flags in the same way and on the same level as desecrating the national flag.
If burning or desecrating a Confederate flag can be seen as a type of "speech," sending a political and social message, then we cannot deny the same about burning or desecrating the national flag. Remember: the proposed amendment covered desecration, not simply burning. This means it covered things like putting symbols on the flag (like a peace symbol) or wearing the flag on the rear of your pants. How can those — or at least the former — not be construed as "speech"?
The proposed amendment would have potentially allowed for the criminalization of a lot of different things, not just flag burning.
analyzed as such. Here's the most important point: we're
fighting two wars and neither one is going well; New Orleans
is still devastated; we have a huge deficit and an
unsustainable long-term fiscal position; the Republican
leadership controls both the House and the Senate, and
they believe the most urgent issue for the Senate to debate
is whether a form of political protest hardly seen in 25
years should be criminalized.
Shouldn't somebody be trying to actually, you know, *govern* ?
Taken from Chapter 3, Legally Piggily, in his last book, Critical Path, first published in 1982.
I can't get the link function to work, but google Legally Piggily and you'll find it. The quote is half way down the page, but the entire chapter is worth reading.
(Check out the variations on the East India Company flag at wikipedia. Search for East India Company.)
2) I think everyone agrees desecrating the flag is an exercise of political speech, some just find is so offensive an exercise that they want the constitution changes to allow them to ban it,
3) It seems to me getting really ticked off at an occasional protester is a small price to pay for freedom.
4) I have seen several proponents of the amendment talk about the flag as a symbol of our unity, but it seems to me they are really trying to re-claim it as symbol of their partisan political beliefs.
5) Unless congress is given complete control over how and when the flag is used, it will be back in court arguing about what is desecration. For instance, is flying an American flag on a pole under a swastika a desecration? How about under a peace symbol. How about under a cross?
What about as a shoulder patch? What about as a knee patch? What about on the seat of someone's pants?
How about as a bumpersticker? As mudflaps? As a doormat?
The possibilities are endless. The argument over what is desecration is largely one of "does that offend me?" It is fundamentally an argument over what messages the flag will be used to convey.
Of course most of the argument by lawyers will be over what is the meaning of "physical" in "physical desecration", but for the rest of us...
Adam himself and his political siderunners are a terrific example of what has happened to the Founders' ideal of a small-R republic once you open the halls of government to unlimited largesse. In case you haven't noticed, we are fighting overseas at the same time that our political leaders are competing to shower donatives on their financial benefactors. The "tax cuts" haven't made my fiscal life any easier. Have they yours? Do you have more money left over at the end of the month?
Boy, I bet Paris Hilton and Sam Walton's kids sure do...!
ISTM that the kind of crass, ugly, naked greed that has developed in our political system over the last 200 years has been a direct result of the Fonders' inability to perceive a) how expensive running for political offce would become (with the consequent rapacious need of the candidates for cash) and b) the ruinous effect on the public trust that the influence of this filthy lucre has had. No one I know - and I truly mean no one - believes that there is such a thing as an American pol that can't be bought, or will stay bought, if someone with a deeper purse comes along.
I am enough of a student to suspect a variety of motives for our ongoing Majuba-Hill-in-the-Fertile-Crescent, (including simple geopolitical stupidity); however, many of my friends and correspondants simply assume that the Bushies have some sort of corrupt financial payoff at the end of the Iraqi tunnel - oil, bases, contracts...whatever. They refuse to attribute to simple strategic stupidity what they can blame on political greed so bottomless that cares nothing for the welfare of the country or its people.
If you believe in a republic, this is horrifying. When the People no longer believe that they can trust their elected representatives, the bond that holds the republic together fails. The result is at best autocracy, at worst chaos.
If you believe only in power, as Adam's posts here suggest that he does, then the failure of the bond is business as usual. The unwashed masses don't matter. It's the Big Boys that pay for the Big Toys; wars, development, "pork"...they're the real "We, the People" that get served.
Do I think that political donations are "free speech" as currently described under the present combination of constitutional protection and case law? Yes.
Do I think that, could we summon the spirits of Madison, Franklin, Hamilton (well, maybe not Hamilton...), Adams and Washington, and show them the naked avarice masquerading as governance in the District of Columbia (and so many other places in our country) today that they would set their ghostly hands to the parchment and attempt to amend their work to prevent this? In a heartbeat.
Remember that it wasn't only Caesar that crossed the Rubicon. One man doesn't overthrow a republic. Behind him came rank after rank of iron-shod veterans; cynical, abandoned to liberal principles, tired of the abased antics of the venal Senate. A republic can be killed, but she can also die from internal sickness. And a glut of internal silver can be as fatal as external lead.
Essentially the United States was one vote away from putting flag political correctness into out nation's Constitution.
One very small but real step towards making America a little bit more like the Despotic regimes it has long fought against.
During WWII was it legal to burn the Nazi flag in Germany? Under Saddam Hussein was it legal to burn the Iraqi flag? Under Stalin or Mao? How about North Korea or Cuba? Is it just a coincidence that in most free nations flag burning is legal, while in most despotic regimes it is not?
What is the bigger threat to the ideals of the nation in the long run? A handful of flag burnings a year or amending the Constitution to limit freedom of speech of those who criticize the government?
In case anyone has missed the point of the above, my opinion on this whole "flag-burning" issue is that we're missing the point. Who's buring the flag is NOT endangering this country, and to waste the time of the nation's highest legislative body to discuss it is an exercise in political pud-pulling. While we're fiddling with flag burners, there's a whole bunch of gimlet-eyed scoundrels wrapping themselves in the flag whilst they sell our country to the highest bidder.
And that's just sickening.
OK, you've lost me.
Original Post: "That Constitution protects speech, especially offensive speech (speech that is not offensive rarely if ever needs protection from governments). Burning the symbol of our freedom is highly offensive, but we are bound by oath to defend the right to do so."
Same: "Political speech is especially protected under our Constitution. Our Founding Fathers engaged in political, symbolic speech on a regular basis during our Revolution. ... And yes, they burned British flags."
Same: "After our hard-won independence, the very first Amendment to the new Constitution protected the right of future generations to challenge the established government by protecting free speech, including symbolic speech such as burning our own flag."
11:53 PM: "If you can burn a cloth and not get arrested, but can't burn a cloth that looks like our flag without being arrested, then what was banned was an act of speech, not an act of burning."
Same: "However, the clearly political act of flag-burning being made illegal seems to be a case of purely political speech being banned for no other reasons than that it offends."
Same: "I think the Supreme Court was right that burning the flag is protected speech. My circular logic is I agree because it is speech."
3:53 AM: "First, I didn't argue that flag burning is speech."
It seems to me that you've spent your post and the entire comment thread, particularly in response to my comments, arguing that flag burning is speech, speech that is protected by the First Amendment.
You now suggest that the Senate debate assumed that flag-burning is speech. You're just wrong on the facts. I just ran a quick search of the CR. Senator Feinstein said yesterday, "I believe what we have before us is language that is essentially content neutral. It is on conduct--not speech."
Senator Martinez said, "This amendment seeks to prevent the physical abuse of a symbol that has served our country in many valuable ways through its history. It does not do so by restricting anyone's speech but by addressing their physical conduct."
Senator Coburn, speaking of the Founders, said, "They chose the word ``speech'' because they meant speech . They didn't mean behavior. They meant speech."
I won't belabor the point (because I don't care to read the CR anymore!). But your broadly painted view of what the Senators were debating is simply wrong.
On the issue of what the Senators were debating you confuse the rhetoric used with the actual substance.
No one argued that the burning itself was dangerous, but consistently they indicated that what was of importance was what was symbolized.
The Senators may say they were not debating speech but the basis of the arguments belies that. Repeatedly Senators who supported the Amendment refered to respect and disrespect they felt by flag burning.
How do they see disrespect if it is not speech? How does the disrepect arise out of the burning of the flag if no ideas are expressed?
If burning a flag doesnt communicate anything, then what is there to be offended about? It is clear that they believe that burning the flag expresses disrespect and they dont like that expression of disrepect and furthermore, that they want to criminalize it. The fact is there are already laws to prosecute flag burning if it endangers someone physically - the laws already deal with issues not related to speech. This amendment was designed to change that and add speech to the list of things criminalized.
If it didnt regulate speech, what purpose does the Amendment serve that isnt already addressed by the law?
FDChief on target again. And while I agree with JD, frankly
any lengthy debate on the arcana of this topic is precisely
what the Republican party wants. Any time we spend talking
about flag desecration, gay marriage, and immigration takes
the focus away from this government's appalling record of
torture, murder, illegality, incompetence, and profligacy.
The inimitable (if despicable) Newt Gingrich recently
suggested what the Democrats should use as their slogan
for the midterm campaign: "Had Enough ?" That's the one
important question. Don't let Adam and the hordes of
pundits armed with RNC talking points change the subject
for a minute.
I know that. My point, however, is that these Senators and others are drawing a line between "speech", which they argue is protected by the First Amendment, and "expressive conduct", which they argue is not speech and therefore not protected by the First Amendment.
"How do they see disrespect if it is not speech? How does the disrepect arise out of the burning of the flag if no ideas are expressed?"
Same answer. To them it's the difference between "speech" and "expressive conduct".
Which, again, brings me back to my first point. No one actually believes that all expressive conduct is protected by the First Amendment. Why, then, is this version of expressive conduct so particularly special under the First Amendment? The answer is not, as JD noted above, "because the Supreme Court says so." There has to be independent reason -- but what is that reason?
Personally, when I think of flag desecration, I think of Republican neo-fascists like Bush, Cheney, and Hatch wearing US-flag lapel pins the way Nazis used to wear swastikas. The only actual effect of their idiotic amendment would be to make flag-burning a much more effective form of protest.
This is just more dishonest Republican political theater to delude &incite the fools and hypocrites who support them.
What is "special" about flag burning is that what is expressed gets many people very angry. It is content driven. It makes them want to change the Constitution to stop people from expressing something they hate so much.
The laws already govern conduct, and people who burn flags can be punished for many reasons other than the content of the expression, but that is not enough for the sponsors of the Amendment.
Its not only because the Supreme Court says so, but because the First Amendment protects freedom of expression of ideas, even those that many find "disrespectful". Its the expression disrespect they want to stop through force of law.
Actually the idea of freedom of expression is the reason. The right to dissent in a free and democratic government is a reason. The text of Constitution is the reason. Other reasons include the fact that despotic regimes have no tolerance of this expression of dissent while most free nations do. Push come to shove, under our system of government the Supreme Court is the ultimate interpreter of the Constitution. The Supreme Court isnt infalliable, but they have a special role of interpreting the Constitution. The burden of proof isnt on those who agree with that interpretation, but those who dont. In otherwords, if you think it shouldnt be covered then its up to you to prove that it shouldnt be.
It is precisely what is perceived to be expressed that makes people so angry. It is content based. It is politicallly incorrect. These are not grounds for criminal laws in our system of government, nor should they be.
I guess I should take my own advice and not feed the trolls,
but here goes anyway.
Flag-burning qualifies for First Amendment protection
precisely because its political message is the *only* way
it offends. Burn a blank piece of cloth - no offense.
Burn another country's flag - no offense. Burn a flag-
shaped piece of cloth with green stars and black-and-
white stripes - no offense. GW Bush autographing
a small flag - apparently no offense. Whereas your example
of public sexual intercourse, while it could have some
political intent, would offend many with its non-political
content.
Under the US constitution, we have the right to offend
each other with political messages. We have the right to
make an effigy of the current President and burn it.
We have the right to mis-spell the name as "Amerika".
We have the right to assemble peacefully and chant slogans
and hold banners outside the White House. But we don't have
the right to defecate in public at the White House gates.
Catch22 and Richard, you continue to avoid the question I've pushed above: If flag burning cannot be prohibited when such a prohibition prevents expressive conduct, then why does that constitutional amendment not protect other conduct when that conduct is undertaken for purely expressive purposes?
But I'm curious: May I conclude that you both vigorously oppose prohibitions against cross-burning?
On the other hand, don't you see a distinction between expressions of political protest and racial malice? One presumes you are familiar with the concept of mens rea: intent matters.
In this case, the intent of your proposed constituional amendment is more fundamentally criminal in nature than burning a flag is -- because the intent is to impose your self-serving views on people who disagree with you, whereas they are merely expressing their own contempt.
The purpose of criminal law is not to protect people from being offended by what other people think. I think there is room for reasonable limits IRT thing like public nudity and such, but there's nothing reasonable about this nonsense.
It's just more lame Republican BS.
Burning the flag is speech, and no argument is necessary. If it were not speech there would not be an attempt to amend the Constitution in order to make it illegal.
So I repeat, I never argued that burning the flag is a form of speech.
We live a free nation, or claim that we do. We have, in the words of Justice Holmes, a "free marketplace of ideas." No ideas should be banned. None. Not at all. If they are not "good" ideas then the people will not adopt them, just as spoiled fruit is not purchased in the marketplace. Banning ideas or messages we disagree with is much more dangerous than any risks entailed in allowing people freedom to broadcast offensive messages, such as burning a cross, wearing a swastika, or the dissemination of any other ideas we dislike. Let the People decide by picking or choosing the best ideas and ignoring the worst. If we empower our government to ban certain ideas, or the dissemination of certain ideas, then we are giving up our freedom to make our own decisions. We are in effect banning thoughts. That way lies tyranny. I do not need the government to decide for me that I dislike swastikas, or burning our flag. I can decide that for myself, and do not need "protection" from those foolish enough to broadcast, by burning our flag, that they disagree with our system. They are free to disagree - for that is our system.
Therefore, Charly, it is never "prudent to ban such displays by statute as a presumptive incitment to violence." Those who advocate causes you disagree with, such as racial malice, should have the same freedom to express their ideas as you do. As I do. As any of us do. Even if they want to burn a flag, or a cross, or to march through Skokie waving Nazi flags. Banning the Nazis is a victory for their system, a defeat for ours.
You didn't so much "argue" it as you did "assert it, a priori." Quite fine, I certainly don't respond to all the comments I receive.
Well, I dislike the idea that General Dynamics, KBR or Microsoft can buy themselves a senator or three. If Adam's philosophy is constitutionally legitimate, why can't I (or anyone, for that matter, including Vermont) "restrict" rich bastards from purchasing our politicians with "contributions"?
No, that was very specifically the question that I answered.
I never mentioned the "purposes" behind acts: I pointed out
that flag-burning is completely inoccuous and inoffensive
apart from its political message. Whereas your examples
of public sexual intercourse, public nudity, pot-smoking
are all activities which are prohibited for reasons
unrelated to any "message" or "purpose" which might be
claimed to motivate them.
Enough already, Adam. While you engage us in petty logic-
chopping, the US government is torturing people. Go shut
yourself in a 4ft x 4ft x 20in box for 48 hours before
you waste our time here again.
I never avoided it, since it was never directed at me, nor did anything I say suggest or impy that it doesnt. Of couse, I also pointed out that under some circumstances flag burning can be punished under current law.
Depends on how they are written and enforced. In some cases it is appropriate to dissallow burning crosses, in some cases flags. You cant burn either in a crowded theatre. I certainly vigorously oppose writing extra criminal prohibitions against cross buring into the Constitution.
Despite my disagreements with Adam, and Charly, I find that I learn more when people question me rather than simply agree. Thus I don't think Adam should be locked in a box, and sometimes word games can be fun.
In any case, the debate about when conduct is speech and when it is not is a fascinating one (for legal geeks like myself, and apparently Adam) and I understand his thrill in parsing words and setting up "traps" for the unwary. I usually enjoy it, too, but not in this case. I perhaps was too somber for Adam's word-play, something I normally would relish. Don't blame Adam for twisting words just like I, and others, do fairly often. I just didn't want to do it about this topic, one dear to my heart. That isn't Adam's fault.
So let's not drive Adam away. His challenges are often quite fun.
Lets be clear. Cross burning was banned because it was used as and intended as a threat. A threat which had been fulfilled many times. Point a gun at someone and you can not defend yourself by claiming you were only expressing yourself.
The notion that there is some difference about expressive speech and is empty rhetorical nonsense. Can sign language be banned since it is physical? As has been pointed out - the amendment expressly allows congress to decide what ideas can be expressed with the flag. Those that are offensive are desecration, those that aren't are acceptable. For instance, was it a desecration of the flag to drape the coffin of Timothy McVeigh? How about a child molester or murderer? At what point does it become a desecration? That answer is entirely determined by the content of the message conveyed and whether it is offensive to a majority of the members of congress.
BTW - it appears that the amendment gives the congress the sole authority, not subject to Presidential veto. Is that the case?
No. When an amendment gives Congress the power to enact laws to accomplish its purpose, all that means is Congress can enact laws, not that the process of enacting laws has changed. The laws must still be signed or vetoed by the President.
But that is not what the Amendment says.
The Congress shall have power to prohibit the physical desecration of the flag of the United States.
For instance while, the 14th amendment empowers the congress to pass legislation to enforce it, this proposed amendment explicity says "congress" shall have the power to prohibit it.
For instance, in the case of proposing Constitutional Amendments there is no Presidential veto. That authority is given directly to congress in the constitution, not as part of its general legislative powers and therefore not subject to veto. The wording of this amendment seems to give the authority directly to congress in the same manner.
But Ross' question got me thinking (which is why I love this blog and the commenters who share their thoughts):
What such an amendment would do is overturn the Supreme Court, which held that Congress did NOT have that power because the People never gave that power to the government, and the People insisted on the First Amendment in order to make that clear.
The government can not "allow" flag burning right now. NO, I did not make a mistake there. The government does not allow flag-burning. Why? Because "allowing" flag-burning would mean that flag-burners would not be able to burn away without permission.
That is the way most people think, but in truth the opposite is true. WE, the people, don't "allow" the government to ban flag-burning. We chose not to give the government that power, and therefore it can not "allow" flag-burning even if it wanted to - and it can't ban it either. The government has only the power granted to it, and we the People gave it NO power to allow or forbid flag-burning when we the People enacted the First Amendment.
All power originates with the People. That is why an Amendment would be required to ban flag-burning - it is Congress seeking power from the People, power that the Founding Fathers and the Revolutionary generation refused to give to the government back in the late 1700s.
That is why I don't see "protecting the flag" as an act of Patriotism. Instead I see a government seeking powers that Jefferson, Adams, Franklin and Madison didn't want it to have. We have a limited government, and it can only go as far as we allow it to go. The flag-burning amendment lets it go further, and sets a dangerous precedent - and would mean that the government is sovereign.
We, the People, have never restricted the Bill of Rights. This would be the first step in taking power away from the People and putting that power in the hands of the government. Sure, I do not like seeing the flag burned. I love that flag. I pledged allegiance to it (and the Republic for which it stands) every day as a schoolboy. I served under that flag wearing the uniform of my nation, and I am incredibly proud of myself for doing so. I still get choked up sometimes when I hear the National Anthem. But give the government more power, at the expense of the People, in order to protect the flag, when Jefferson and Madison refused to do so? I think not. Especially not when it is couched in a lie that says giving such power to the government is an act of Patriotism.
So it stands thus: Congress simply does NOT have the power to prohibit the physical desecration of the flag of the United States. If it wants that power it will have to go to the People - and for over 200 years the People have refused, beginning with the generation that fought our Revolution and founded our Republic. Any congressman or Senator that asks you for such power is not deserving of your vote. They seek more power for the government at the expense of the People, and that is not the way self-governing republics should run.
Flags = emotional trigger (whip up the hysteria)
Bill of Rights = rational discourse (too boring, you don't want to know)
Meanwhile, back in the Supreme Court, we have another set of very messy opinions dealing with matters of some importance to the basic nature of our democracy: campaign contributions and congressional reapportionment, and I guess we know which side of the mess the Republicans are on don't we?
And these same people want to shove something they refer to as "democracy" down the throts of Iraqis at gun-point. Bah.
I have no easy answer to the campaign financing dilemma, but on approtionment I think the answer is very clear: we need a constitutional amendment that implements proportional representation. That would end these endless gerrymandering games once and for all, and it would also allow third parties to chip away at the stale monopolies of the Democrats and Republicans. While we're at it, we should eliminate the electoral college, and maybe even alter the composition of the Senate somehow - perhaps give states 1, 2, 3, or 4 Senators based on population. I also think somthing should be done about giving D.C. full representation in Congress, and I think the fairest way of doing that would be to simply return the district to the state of Maryland.
But do you think the Republicans would go for any of that? Not a chance - the last thing they are interested in is actual DEMOCRACY, the hypocrites.
Charly
Not to defend Adam, but he has his beliefs which run counter to mine. I will grant he's willing to defend those beliefs with the one weapon he has: Faith in his rightness. But faith in rightness does not make one right, and citidals that are so rigidly defended tend to become cells from which the person needs rescuing.
I think that by continuing to participate here, Adam will come to see that the world is not so black and white. There does exist gray, but as we all know the gray area should not be expanded so that black and white cease to exist.
As I said, I'm not defending Adam, he can do that himself, but I am arguing for patient reasoning and the faith that by keeping him engaged he'll become more compassionate to our viewpoint. And perhaps, take the time to rethink his rightness by which he has entrusted so much of his faith with.
WHAT'S GOOD FOR THE 'ELECTION INDUSTRY' IS WRECKING U.S. DEMOCRACY
By William Pfaff, 27 June 2006
PARIS - In 1976, the U.S. Supreme Court issued what may one day be thought the ruling that destroyed American democracy.
The ruling was in a suit (Buckley vs. Valeo) filed by, among others, the improbable combination of the conservative Sen. James L. Buckley of New York and the liberal Eugene McCarthy, presidential candidate and former senator from Minnesota.
The ruling had the unasked and unexpected effect of protecting, ever since, what amounts to a means test to political office in the United States. If you don't have money (and today, lots of money, coming mainly - to both political parties - from business and industry), you don't get elected.
While Buckley vs. Valeo set some limits on campaign financing, its crucial determination was to identify the money spent by political candidates and their supporters on campaign advertising as constitutionally protected free speech.
Saying that as "virtually every means of communicating ideas in today's mass society requires the expenditure of money," the Court ruled that to restrict campaign money was to restrict political speech.
The Court failed to recognize that while money enables the dissemination of free speech, it is not free speech itself, whose dissemination could be assured in other ways - for example, as a public service obligation of national and local broadcasters, as is the case in most other democracies.
The nature of political contest in a democracy is to pit individuals against one another in tests of ideas, issues, merit and character. This assumes reasonably equivalent access to the electorate by the candidates.
In most advanced nations, governments make sure of popular access to the electoral debate because they recognize that not to do so is to deliver elections over to commercial media and thus to competitive spending of money, and the corruption that tends to follow.
Nonetheless, on June 26, the Supreme Court ruled unconstitutional a Vermont law limiting campaign spending by candidates for governor to $3,000 and that of candidates to become state representatives to $2,000 (both figures indexed to inflation).
This was in response to a challenge to Buckley vs. Valeo.
The new case was again a complex one. It also reaffirmed the 1976 ruling's authorization of some restrictions on campaign spending. But even this ran against the views of Justice Antonin Scalia and of Justice Clarence Thomas. They argue that any limit at all on campaign spending is unconstitutional.
Their defeat in this case revealed a deeply divided court and left the campaign finance issue in new and considerable confusion, since conservatives had hoped that the new chief justice, John Roberts, and Justice Samuel Alito would vote with Scalia and Thomas.
That would have made the ruling 5 to 4 and encouraged conservatives to believe that if George W. Bush had the opportunity to make one new appointment to the Court before his term is up, all limit on spending to elect national officials in the United States would be ruled unconstitutional. That would make the country well and truly a plutocracy, in which money rules in principle and law, as well as in practice.
The Democratic party and most other liberals in the United States aggressively attack conservative court nominees on their beliefs on abortion and other so-called "lifestyle" issues. If Karl Rove has his way, they soon will be fighting in favor of homosexual marriage and adoption (the latter a truly terrible idea). In the meanwhile, liberals overlook the question of how long the United States will continue to enjoy representative government.
The United States in recent years has increasingly looked to law to deal with questions that are properly political. The issue of campaign finance is supremely political in nature, dealing with the character of American political society and the role of money in national life.
Money has always talked in the United States, usually louder than elsewhere (and so what?, Americans say). In modern times, campaigning has moved naturally from buckboards and whistle stops into the hands of the new advertising industry, and then into the mass broadcasting media, both of which appeared first in the U.S.
Nobody noticed, or at least objected, as national politics was itself slowly turned into an industry. Presidential election campaigning, with its enormous apparatus of money-raising, polling, advising, and campaign-creation and execution, is now one of the biggest businesses in the country.
It even seems ready for mutually profitable merger with one (or all) of the media conglomerates, since entertainment and politics already are hard to disentangle.
All this curiously defies the religious origins of the country. Neither Calvinism - historically, the biggest influence on American Protestantism - nor Catholicism, now the biggest individual church in the U.S., is an acquisitive religion. Quite the contrary. Low-church Protestantism and American Catholicism were the religions of the American poor until the 1950s. Now the followers of both seem perfectly content to hand American politics and government over to the rich.
--
My, my. You ARE the liberal aren't you? Has it occurred to you that Adam is engaged in propaganda, not intellectual debate?
rofl!
Believe it or not, I'm a...former Republican, who has grown more and more moderate as time goes by, and to add shock and horrors to it all. I vowed never to vote for Barbara Boxer...ever! And yet, the one person who spoke with the indignation that this whole mess which is also known as the War on Terror, 9/11 changed everything, etc deserves was and is Barbara Boxer. So I now will be voting for her come this November, and the whole time my wife is laughing at me...well, at me and with me.
I'm a student of the human condition, and no matter how massive our citadels, life fractures are preconceptions.
I'm sure Adam is thorough ensconced in his opinion, and because of his entrenchement he feels confident that his is the right belief. I on the other hand, sitting under my shady tree, have seen many a citadel fall from little more than the light of truth shining on their tower daily. Well, lets just say that the light tends to bake those inside their citadels until they wisely give up the pile of rocks.
Are you sure it isn't that the world has grown more conservative? I look at what passed for moderation in the 80's and it appears to me that even today's liberal Democrats would have been considered moderate Republicans.
Seriously, Adam, what am I missing? I'm a bit perplexed by your last comment.
The impulse -- to punish those who denigrate what you revere -- seems identical to me.
So burning it when you don't want it anymore is officaly correct, according to the people who run the goverment, but burning it when you don't want them is not?
If burning it in one arina is correct but in another is wrong then we have to look at what is diffrent, is it the flag, or the flames, or the message?
JD, you are so right on the money. When I became a soldier, I took the oath at the Detroit processing center. I was not told that it was going to be part of the process. We were ushered into a room and given a copy of the oath. I remember saying the words "support and defend the Constitution" and thinking they wanted me to do this? This seems like to big a task, for a kid from Michigan farm country. But it isn't, it wasn't. It is what we do when we reaffirm the precept under which this country was founded.
If you have the DVD, catch the speech by President Sheppard at the end. Here is a link to the text: http://bornlivelovedie.com/2006/06/28/selling-it/