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The Stupid Little Punk Amendment:

John Tabin criticizes the proposed amendment in The American Spectator; here are my favorite lines:

Do we really feel threatened by those so moronic that they burn the American flag, call ours a fascist state, face no consequences, and completely miss the irony? . . .

[T]he flag-protection effort ought to be scotched for the simple reason that America doesn't get rattled by some stupid little punk with a Che Guevara T-shirt and a Zippo. . . .

Larry88 (mail) (www):
Okay, let me get this straight: all of the lay conservatives are "against" the anti-flag-burning amendment.

Yet somehow it passed the house.

So, of the people that matter really supports this thing. Are you friends with any of them ?
6.24.2005 5:42pm
gab (mail):
Speaking of "moronic" arguments. He undermines his own argument by using words like "moronic," "punk," and "Che Guevara T-shirt" and Prof. Volokh betrays his prejudices by citing his "favorite" passage. It's clear from a quick read that flag-burners really get under Tabin (and Volokh's) skin (skins?) but won't admit it.

The question thus becomes, Professor - do you, in your heart-of-hearts support the amendment or not?
6.24.2005 5:50pm
Trenchard Gordon:
gab,

The argument simply asserts that even neanderthals deserve to be left alone in their offensive-but-peaceful activities.

What's self-undermining about that proposition?
6.24.2005 6:01pm
A. Friend:
To be a little provocative: Is it really right to assume that those who would burn the flag are morons, punks, imbeciles, and despicable? After all, even if we take flag-burning to stand for hatred of what America stands for, are those who hate what America stands for -- under the current government and all that it has done -- really despicable? Or is it a legitimate position that America, under the Bush government, has come to stand for lying to its people in its aggressive pursuit of war; tortuing international prisoners whether innocent or not; ravishing the environment; making a war hero seem a traitor; etc., etc.; and that, as such, America, as symbolized by the flag, is repulsive and deserving of disparagement? In this crazy day and age, is it so irrational to hate America? America once may have stood for other values, but the values that America seems to stand for today can legitimately seem repulsive to reasonable people. Why, then, should flag-burning be treated any differently from verbal expressions of hatred of America/American policy?
6.24.2005 6:09pm
CB (mail) (www):
Gab,

I too don't see how the argument undermines itself. It is one thing to feel threatened by Che t-shirt wearing faux radicals. It is another to consider them somewhat ridiculous.

I too find hip, usually hypocritical, fashion radicals who complain about US government oppression at the same time as they wear hammer-and-sickle T-shirts to be annoying. I usually don't find them threatening because for all their talk of wreaking havoc on the system, they're too content living with American luxuries to actually do anything to foment the revolution (unless you think that refusing to eat at Chipotle is really going to bring down the McState.)

I think that amending the constitution to prevent flag-burning gives the dunderheaded displays of flag-burners more credibility and importance than it deserves.
6.24.2005 6:21pm
gab (mail):
"Neanderthals?" I assume you're purposely using the same literary device as the author and Prof. Volokh. That is, attempting to demean flag-burners but pretending you don't really care that they burn the flag. Wouldn't it be more intellectually honest of you three to just write your true feelings on the issue? And deny flag-burners' first amendment rights in the bargain?
6.24.2005 6:24pm
Trenchard Gordon:
A. Friend,

I don't think you need to accept all of John Tabin's premises to admire the argument. He simply presented a picture that was bound to raise conservative hackles and argued that even in these cases, you ought not punish.

This strikes me as a sound rhetorical strategy.
6.24.2005 6:27pm
Trenchard Gordon:
gab,

My true feelings are that lots of things offend me -- flagburning is one of them. Hate speech is another. But unless someone assaults me or trespasses on my property, there is no reason to punish him simply for giving offense.

Civilizations flourish to the extent they resist the urge to punish those with whom they disagree, which is why I oppose the flag amendment.
6.24.2005 6:36pm
Public_Defender:
I'll ask the question I asked near the end of the last flag burning comment section:

Does anyone think that a flag burning amendment would actually decrease flag burning?

I would think the opposite would be true because those who burn flags would flock to the attention they would get from both arrest and amendment.
6.24.2005 6:47pm
Andy Metcalf (mail) (www):
Professor Volokh--

If the amendment passes, couldn't a more conservative Supreme Court use it to say that any form of unpatriotic speech is illegal? Since a flag is only one of many American symbols.
6.24.2005 7:08pm
anony-mouse (mail):
"Neanderthals?" I assume you're purposely using the same literary device as the author and Prof. Volokh. That is, attempting to demean flag-burners but pretending you don't really care that they burn the flag. Wouldn't it be more intellectually honest of you three to just write your true feelings on the issue? And deny flag-burners' first amendment rights in the bargain?

The one does not follow the other. Why do you seemingly insist that they should?

Personally, I think the action of flag-burning is, at best, imbecillic. The reason it is imbecillic is that it doesn't really address any specific grievance, it simply decries the entire American experiment in one symbolic gesture. Concomitantly, if the perpetrator is doing this on American soil, he or she is enjoying at least some of the benefits and protections afforded by being in the United States while protesting, in symbol, the United States.

In short, it is an equivalent of a toddler's temper tantrum: it is a selfish gratification, it is an obnoxious display to others, and it accomplishes nothing produtive.

Nonetheless, that kind of speech is not dangerous in any of the ways that speech is traditionally banned ("Fire" in a crowded theater, etc.) So why would I wish it banned by ammendment just because I dislike it?
6.24.2005 7:34pm
Ken from CA (mail) (www):
Gab:

There is no contradiction unless you start from the totalitarian premise that one ought to want to suppress expression that one finds obnoxious, or from the ridiculous contra-premise that if one thinks that particular expression should be protected, than one ought not to criticize it. That's silly. After all, the whole reason we feel that we can afford to refrain from punishing obnoxious expression is that we believe the marketplace of ideas — such as ridicule — can take care of it better. What kind of coherent First Amendment theory holds that flag burners should not only not be prosecuted, but should not be made fun of?
6.24.2005 7:37pm
Steve:
I don't understand the slippery-slope arguments that suggest Congress would be able to run with this amendment and ban all sorts of things. While one may disagree with the theory of "emanations and penumbras," at least in that instance the Court was dealing with a broad, undefined term such as "liberty." The word "flag" is a great deal more specific. While Congress could undoubtedly use this amendment to ban the burning of flag replicas, flags with 49 stars, and other quasi-flag items, it is hard to imagine that this amendment would ever be interpreted as a license to ban all sorts of "anti-patriotic" conduct.

I think most people view flag-burning as a one-shot deal, a special case, and while it may be abject pandering to push this amendment, I reject the rhetoric that suggests this amendment would be the death knell of all freedoms that Americans hold dear. If I am wrong and this turns out to be just the first of dozens of amendments making exceptions to freedom of speech, well then, I guess I will be wrong.
6.24.2005 8:02pm
Jim Rhoads (mail):
A Friend:

At least in this country, one who "hates" it can leave any time for points in many directions.

I believe that no one should be forced to remain in a place that inspires such strong negative emotion.

The beauty of this country is no one is.
6.24.2005 11:06pm
Tom952 (mail):
Here, here.

And by the way, how did this get to the floor ahead of everything else? Let me see...what other issues did not get to the floor while this was being considered?
6.24.2005 11:44pm
pmorem (mail):
If someone were burning the flag on my property, I'd treat them like any other violent trespasser. If they were burning it on their own or public property, then they've told me everything about themselves that I need to know.

Essentially, someone burning the flag tells me that I need to consider them as an indirect threat. Let them burn it. They're trying to prove something to me. They succeed, but it's not what they think it is.
6.25.2005 12:26am
A. Friend:
Jim: The argument that you cite ("Love it or leave it!"), instead of engaging in debate, tries to foreclose any debate: if something's wrong, one shouldn't be so bold as to complain about it, but should meekly either shut up or go settle in one of the many other points in the world that you seem to think are so easy for the average person to move to. This argument is really no argument at all, but mere jingoism. . . . Also, you may not be aware of this, but America is not the only country in the world from which its citizens are free to depart; far from it.
6.25.2005 12:56am
Gene Vilensky (www):
A. Friend:

First, Jim did not say "love it or leave it."

The question is, what is the point of burning the flag? Presumably, the people who talk about the evils of George Bush lying, going to war, destroying the environment, making a war hero seem like a traitor, eating babies, swallowing small puppies alive, etc. etc. don't actually hate America, or so they say. So, yeah, sure, you can disagree with George Bush. But, burning the flag, rather than a photo of George Bush, seems to declare that you hate America.

So, if you do hate America so much, that you would burn our flag, then the point is that you are free to leave. It doesn't mean that you have to love everything about our country or not criticize it. But if you find it so repugnant to its core (not just its current leadership) that you would burn our flag, then maybe, just as a suggestion, it would be better for your own personal psyche to leave.

But then again, it wouldn't nearly be as fun and tragically hip to walk around the East Village in your Che t-shirt and a trucker hat and talk about evil corporatism and Starbucks on every corner, etc. etc etc.
6.25.2005 4:11am
Steve:
Charming use of stereotypes, there. For the record, there is no flag-burning taking place in the East Village.
6.25.2005 10:05am
Eh Nonymous (mail) (www):
I love the forthright protests against the slurs ("moronic," "Neandertal" - only the user spelled it wrong...) used against those who argue that there is no valid constitutional power to ban the (otherwise safe) burning of flags as a political protest.

Because that's what we're talking about here. The first amendment, not the smelly hippie whose actions may invoke it. That's why Scalia put aside his visceral hatred for dirty, smelly hippies to vote on their side. Remember? He thought about the law first, and who was asking for its protection second.

To address anony-mouse's point:

I think outlawing flag-burning is, at best, imbecillic. That's because regulations (proper handling, proper display, etc.) are entirely proper; safety laws (no burning things in courthouses or too close to others' property) are entirely proper; and regulation of _political protest_ is manifestly not a proper area to go traipsing into with criminal law. Arson and death threats and bombs yes; flag-burning laws no.

Why?

Well, all you naysayers, why do we even want to uphold and protect the flag? Because it's a symbol? Okay, of what? It's a symbol to those who revere it of the best that the country symbolizes, of our history, our origins, and our hopes and dreams. Great.

What does it symbolize to, well, others? It's the first thing civilian Iraqis might notice about the soldier in their house. It's the thing a dirty, smelly hippie sees when the national guard come to hose him down for speaking up against oppression and murder. I'm not ranting here, I'm describing; murder has occurred, hippies and minorities and liberals have protested, and the hoses and dogs and batons have come out in the past.

The flag that we burn is the flag of oppression, of state violence, of racism, of genocide, intolerance. We are symbolically burning that which we oppose, including the worst of what the country symbolizes, its history, origins, and our fears and nightmares of the present and future.

The reason we must protect the right to burn the flag is the reason we must protect the right to display and revere the flag. It is a symbol, of political philosophy and of America.

Outlaw symbolic dissent, and you are well on your way to outlawing all dissent.

Which would be, as we well know, a bad idea.
6.25.2005 12:43pm
pmorem (mail):
Eh Nonymous said The flag that we burn is the flag of oppression, of state violence, of racism, of genocide, intolerance.

That pretty much demonstrates my arguement. The words "The flag that we burn" pretty well characterizes where you're coming from, so I don't have to put a whole lot of thought into figuring that out. I can safely lump you in with "people so filled with hatred there is little point in conversation".
6.25.2005 2:00pm
markm (mail):
Eh Nomynous illustrates one good specific reason for not banning flag-burning: why interfere with the ability of those like him to publicly demonstrate that their opinions are rooted in deep and poisonous Anti-Americanism?
6.25.2005 10:02pm
fuzzykisser:
You know, I often wondered - if its burned how do you porve it was really a genuine flag?
6.26.2005 12:58am
Hank:
Public Defender think that the amendment would increase the number of flag-burnings "because those who burn flags would flock to the attention they would get from both arrest and amendment." But there's another reason, and one that is not so patronozing to flag-burners. There would be many flag-burning to protest the amendment, and that would surely be an apt way to protest.
6.26.2005 10:27am
Public_Defender:
There is a flip side to markm's point ("why interfere with the ability of those like him to publicly demonstrate that their opinions are rooted in deep and poisonous Anti-Americanism?").

The flag burning amendment would eliminate voluntary respect for the flag. Because respect is not now mandated, we know that the 99.99% of Americans who don't burn the flag do so out of voluntary respect. But the amendment turns respect into conformance.

If the amendment passed, the flag would no longer be a symbol of freedom. It would be a symbol of mandatory conformance with government policy.
6.27.2005 5:46am
anony-mouse (mail):
Eh Nonymous: You merely prove my point about "temper tantrum equivalence." It doesn't matter how the reasons are premised in the flag-burner's mind, any more than it matters whether the floor-pounding toddler wants a pack of bubblegum or the candybar. All I see as an external observer is someone who hasn't yet learned to express himself to others in a rational, convincing way. The one key difference is that a toddler will learn, with additional maturation and parental training, that there are better ways to aquire desired things and not all desired things can be had. I fully maintain that anyone who has achieved legal adulthood yet refuses to apply that lesson is, in fact, imbecilic.

Nonetheless, as I stated, I don't find flag burning so threatening a speech form as to merit an ammendment. It is merely an obnoxious display and I see no good basis for attacking it constitutionally.
6.27.2005 2:57pm