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Desecration:

A commenter (Porkchop) raises a great point:

Republication of the cartoons boils down to this: Depicting Mohammed in violation of Muslim tenets strikes a blow at the very heart of Islamic beliefs, and and such sacrilegious desecration of their beliefs is so offensive and hurtful that it simply should not be allowed, even under the guise of "free speech."

Personally, I don't buy into that, but here's a question for discussion: Isn't this the same argument advanced in the United States by those who want a constitutional amendment (and implementing federal and state statutes) to ban the burning or other desecration of the flag of the United States? Can one support the right to publish the cartoons and also support a flag-burning amendment? If so, how does one distinguish between the two?

One can naturally come up with some distinctions — among other things, banning all depictions of Mohammed burdens a wider range of speech (e.g., pretty much any film biography of Mohammed) than banning flagburning would — but I think that on balance these distinctions are unpersuasive. If you want to credibly say to Muslims that they have to tolerate offense to their sacred symbols, you have to tolerate offense to your own sacred symbols, too.

Conversely, as I've argued before, allowing flagburning bans seems likely to help stimulate what I call "censorship envy": If my neighbor gets to ban symbols he dislikes, why shouldn't I get to do the same? This kind of misplaced desire for equality of repression is a powerful psychological force.

One risk, then, is that banning the desecration of one symbol will help lead to bans on desecration of the other — allowing flagburning bans will change swing voters' views about freedom of offensive speech, or will trigger their concerns about equality, and will lead to bans on desecration of religious symbols.

Of course, it's quite possible that this slippage will be resisted — that even if there's not much of a good logical distinction between flagburning bans and bans on insults to religious symbols and figures, American politics will lead to the adoption of the former but rejection of the latter. But that itself, I think, will be harmful: Right now, when American Muslims are deeply offended by pejorative depictions of Mohammed, we can tell them: "Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too. Many Americans are deeply offended by flagburning, much as you are deeply offended by depictions of Mohammed, but the Constitution says we all have to live with being offended: We must fight the speech we hate through argument, not through suppression."

But what would we say when flagburning is banned but other offensive symbols are allowed? "We in the majority get to suppress symbols we're offended by, but you in the minority don't"? "Our offense at flagburning is reasonable but your offense at depictions of Mohammed with a bomb in his turban is not"? If you were a Muslim citizen of America, would you be persuaded by these arguments? Would you feel better about America because of them?

The First Amendment was drafted and interpreted by people who intimately understood cultural, religious, and political conflict, and who knew how calls for censorship could launch the most bitter of culture wars. The First Amendment is a truce: "I won't suppress your ideas, and you won't suppress mine." And a ban on flagburning would undermine this truce.

Steve:
I also thought this was a very good point. Supporters of a flag burning amendment typically say "the flag is special, we can make a special exception for it, it wouldn't be the end of the world." Which seems fair enough to me.

Similarly, European bans on Nazi symbolism don't really fit within our American conception of unfettered free speech, but they have their reasons for it, and it's not the end of the world.

The danger here is that radical, fundamentalist Muslims won't necessarily stop at forbidding pictorial representations of the Prophet; they seem to have a larger agenda of banning "blasphemy against Islam" of all types. Just ask Salman Rushdie.

But if the issue were simply limited to whether one can publish pictures of Muhammad, I'd have to say, there are plenty of precedents to suggest it's not the end of the world if you make one special exception. The problem in the present situation is that it wouldn't actually be just one exception.
2.8.2006 2:23pm
Mobius (mail):
It seems sorta hypocritial of the extreme muslim movement to say they are offended by the cartoons and then legitimize the cartoons by doing the exact same thing they portray.

I feel your arguement doesn't hold water. The cartoons are mere reflections of reality. Muslims bomb people because of Mohammed and Allah. They are accurate commentary and truthful. You would hide the truth for the sake of what? To buckle under meaningless violence and intolerance. Isn't this what the Nazis did leading up to the elections in Germany?

The truth needs to be printed at all costs.
2.8.2006 2:23pm
The Original TS (mail):
One of many reasons I think the ban on flag burning is an utterly stupid idea.

There's a qualitative difference between no cows and one cow. But there's only a quantitative difference between one cow and a herd of cows. This is equally true whether the cows are sacred or profane.

One we accept the concept that there are some ideas that should never be expressed, we're already half-way down the slippery slope. Everything becomes subject to a heckler's veto. Flag burning upsets a lot of people a little. Ban it! Mohammed cartoons upset a few people a whole lot? Ban them. Both cause similar amounts of social disruption. Volume can always make up for numbers. Some European countries have started down this path and I think it's a huge mistake.
2.8.2006 2:27pm
srg (mail):
I'm against a flag burning amendment, but I think the parallel between being allowed to publish something and being allowed to burn something is questionable. The first is obviously speech; the second is symbolic speech. A better parallel would be Muslims' wanting to publish pictures of our flag with some anti-American symbol added, which of course would be legal.
2.8.2006 2:29pm
MCO:
The other big difference is that the Flag Burning Amendment (FBA) was intended to prohibit activities within the US, while the "protestors" are seeking to preclude such activites everywhere. Moreover, in order to get the FBA passed, one would have to go through the entire consititutional amendment process which would (hopefully) ensure that the vast majority of Americans support it. The "protestors", on the other hand, are attempting to foist minority demands on the majority in a fundamentally illiberal manner.
2.8.2006 2:31pm
HeScreams (mail):
I'd like to repeat my reply to porkchop, since the distinction between flag burning bans and anti-religious speech bans is being discussed: one possible difference is that flag-burning is a statement against a country, while anti-religious speech is not (in the US, at least).

I'll clairfy my earlier caviat, while I'm at it: I don't see cause for banning either type of speech. I'm just discussing possible distinctions.
2.8.2006 2:32pm
Freder Frederson (mail):
The first is obviously speech; the second is symbolic speech.

Umm, drawing and writing are not speech. They symbolize speech, just like the non-verbal act of burning a flag.

one possible difference is that flag-burning is a statement against a country, while anti-religious speech is not (in the US, at least).

Which actually argues more strongly against a prohibition on flag burning, since that is clearly political speech, which deserves the highest level of protection under the Constitution.
2.8.2006 2:43pm
chris (mail):
Call me unpersuaded by the argument that one cost of a flag burning amendment (which I really don't care about either way) is that we can no longer say to Muslims "We allow all sorts of desecrations, not just those that offend Muslims."

Why? Because Muslims simply won't see the parallel. They are unique. God has given them the truth. We see the parallel in "the flag is sacred to some, but it can be burnt. Mohommed is sacred to others, and he can be mocked. Everyone's sacred cows are fair game" and so on. But the typical Muslim would respond "the American flag is not sacred. Burning it is not blasphemy. Portraying Mohommed is blasphemy. There is no such thing as sacred to me vs. sacred to you. There is only that which is revealed to be sacred by God in the Koran." I find this depressing, but arguments that try to make parallels are probably wasted breath.
2.8.2006 2:45pm
18 USC 1030 (mail):
Professor Volokh,

I also think it is important to distinguish between the "freedom of speech" provided by the First Amendment and the "freedom of speech" provided by other instruments including the UDHR, ICCPR, and the ECHR.

The First Amendment to the Constitution provides that:<blockquote>
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
</blockquote>
Conversely, the other documents state:

Article 19 of the UDHR provides that:<blockquote>
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
</blockquote>
and

Article 19 of the ICCPR provides that: <blockquote>
1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
</blockquote>
and

Article 10 of ECHR provides that:
<blockquote>
Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
</blockquote>
The difference ought to be obvious, in the United States, the government does not provide the freedom of speech; rather, it is precluded from abridging that which is an inherent right of men. Conversely, the International Documents, due, obviously in part to the Hobbesian framework of traditional International Law provides the right to freedom of speech.

This I think is an important distinction; for, in the United States, to preclude the ability to print, say, or otherwise distribute or receive information would be a violation of the first amendment, though not necessarily a violation of the freedom of speech as it exists elsewhere. The question is how does one define the freedom of speech, being that in the US the freedom of speech is protected rather than provided would at least suggest that such prohibition would be unconstitutional. However, if as in the European Union, the freedom of speech is provided rather than protected, such a prohibition could be legitimate as it is arguable that he who creates a right can define that which is included in that right. Whereas, when one pledges to protect a right inherent in all men as dictated by natural law, one cannot alter the definition of that which they did not create.
2.8.2006 2:48pm
Angus (mail) (www):
I also think it's a great analogy, and I think it has relevance to the question of whether the editorial decision to run the cartoons was a laudable one.

Imagine that a Danish paper had run a full-color image of an American flag, with instructions on how to clip the flag out and burn it. Would the folks who are praising the Jyllands Posten as free-speech heroes be campaigning to get American papers to reprint that graphic?

On a related subject, by the way, it's been reported that an artist tried to interest the Jyllands Posten in a set of cartoons lampooning Jesus two or three years ago, and that the editor said he wasn't interested because the drawings would "provoke an outcry" among the paper's readers.
2.8.2006 2:49pm
18 USC 1030 (mail):
Not sure why my blockquotes didn't work.
2.8.2006 2:50pm
Seamus (mail):

among other things, banning all depictions of Mohammed burdens a wider range of speech (e.g., pretty much any film biography of Mohammed)



As those of us with long memories will recall, back in 1977 a group of Hanafi Muslim terrorists in Washington seized the B'nai B'rith headquarters and the District Building, taking a number of hostages, in order to demand (among other things) an end to the showing of the movie "Muhammed: Messenger of God," which had recently opened in New York. (Marion S. Barry, Jr., the future mayor who was then a member of the D.C. Board of Education, was one of the hostages and took a bullet in the chest during the takeover.)
2.8.2006 3:01pm
Gordo:
Chris, today's Muslims might not see the parallel, but tomorrow's Muslims, if we stand up to them and show them what free speech and a free society means, just might. Maybe it will take a couple hundred years for Islam to "grow up" into a modern religion, but we have to start helping that process along some time!
2.8.2006 3:05pm
Kendall:
I think its fairly obvious that the reasons Muslims are offended by the depiction of Mohammed is that they are Muslim and so this disrespectful depiction offends them. Just as Christians are appalled at Chris Ofili's artistic interpretations or Christian groups were appalled at a controversy over an upcoming episode of Will &Grace which allegedly originallly called for a parody segment of a cooking show called "Cruci-fixin's" with Britney Spears as a guest star.

Now, in each of these cases censorship has been asked for. The major difference seems to be the violence by radicals. No one condones violence, its almost never justifiable (with self defense being an obvious exception). However what exactly is being objected to? That Muslims object to a particular portrayal? How much attention was paid to the anger of Christian groups over The Book of Daniel? It sounds a lot like the focus of people is "How DARE the muslim extremists call for a restriction of speech" rather than "Its a shame there's so much violence, why can't the Muslim groups be more tolerant of free expression?"
2.8.2006 3:05pm
Porkchop (mail):
Gee, my own thread! Thanks, Eugene.

For the record, I'm just about as much of a first amendment free-speech absolutist as you are likely to find. I think that the flag-burning amendment is a really bad idea. That makes me a minority of one at American Legion meetings -- one reason I don't go.

I did find the suggestion that offensiveness to a "country" might be considered more serious (and therefore prohibitable) than offensiveness to a divine being (not prohibitable) a bit jarring. The priorities seem kind of skewed, but, being nonreligious and a free-speech absolutist, I don't have a dog in that particular fight.
2.8.2006 3:06pm
El Capitan (mail):
"One can naturally come up with some distinctions -- among other things, banning all depictions of Mohammed burdens a wider range of speech (e.g., pretty much any film biography of Mohammed) than banning flagburning would -- but I think that on balance these distinctions are unpersuasive."

I actually think this is a stronger distinction than you credit. While I think that a ban on flag burning is pretty dumb, it doesn't keep me awake at night because, in the end, there's about a billion other ways to get the same message across. Restricting all depictions of Mohammed seems much more burdensome on speech. I don't know about most people here, but if the Government had undertaken to affirmately ban all depictions of Christ in art in response to Last Temptation of Christ or Piss Christ (a more apt analogy), I'd be a lot more frightened than I'd be by any flag burning law.

Sometimes qualitative differences are pretty important. I'd still ban neither because I prefer my bright lines when it comes to free speech, but neither do I think they're utterly indistinguishable.
2.8.2006 3:09pm
Eric James Stone (mail) (www):
Of course it's possible to make a distinction.

The U.S. flag is the symbol of the United States of America. By passing a prohibition on flag burning, the USA would be choosing to prevent desecration of its own symbol within its own jurisdiction.

What is the analogous position for Muslims regarding depictions of Mohammed? By having a commandment against depicting Mohammed, Islam has chosen to prevent desecration (or idolatry) of its own founder within its own jurisdiction.

But what is its jurisdiction? Within the U.S. at least, Islam's jurisdiction extends only to Muslims. That commandment has no force whatsoever when applied to me, a Mormon. On the other hand, the Mormon commandments regarding coffee or tithing have no effect on Muslims.
2.8.2006 3:10pm
Porkchop (mail):

This I think is an important distinction; for, in the United States, to preclude the ability to print, say, or otherwise distribute or receive information would be a violation of the first amendment, though not necessarily a violation of the freedom of speech as it exists elsewhere. The question is how does one define the freedom of speech, being that in the US the freedom of speech is protected rather than provided would at least suggest that such prohibition would be unconstitutional. However, if as in the European Union, the freedom of speech is provided rather than protected, such a prohibition could be legitimate as it is arguable that he who creates a right can define that which is included in that right. Whereas, when one pledges to protect a right inherent in all men as dictated by natural law, one cannot alter the definition of that which they did not create.

I certainly understand the legal distinction. America's founders, the drafters of the Constitution and the first amendment, simply reject the concept that any government "gives" rights. If it is "given," it can be taken away; that being the case, it is not a "right," but a "privilege." I think that most Americans feel the same way today. Under our view, it is simply inconceivable that anyone could or should be dependent on a government or treaty for "rights" (like freedom of speech) that, in our legal and philosophical tradition, are natural rights inherent in the individual. Maybe we should all stand up shout something like, "Wake up, Europe, and get a real constitution." :-)
2.8.2006 3:17pm
porkchop_d_clown (mail) (www):
OT:

Porkchop!

I must say, that you are the first person I've ever met who shares that nickname with me. How did you get it? (Follow my Url for some insight on why I have the handle I do..)
2.8.2006 3:24pm
18 USC 1030 (mail):
Porkchop I think you are missing the difference between our Constitution and the documents I cited. The Constitution was ratified by us, the people, to govern ourselves. This is a Lockian social contract. Whereas, in Europe, each country is to create their own law, so long as it does not violate the Convention. The same is the case for the UDHR and ICCPR-- both ratified by the United States. International documents are generally of a Hobbesian model so as to, as Eugene mentioned in his post: "I won't suppress your ideas, and you won't suppress mine." That is not the US first amendment-- that is the International Law model but not the US model. The United States model is I won't suppress your ideas, for I do not have the right to suppress your ideas. There is an inherent difference. Reciprocity is not of necessity for domestic law, but is for international law.

One may not agree with it, but it is certainly understandable why certain governments would limit the freedom of speech. For example, if Israel were to ban the printing of the Swastika, one would, I assume understand such a prohibition. We in the US may not agree with it, but it is not our place to tell them what should or should not be included in the protection of speech.

Also, we do rely on the government for certain rights. We do not have an inherent right to vote, we rely on the government for that right.
2.8.2006 3:34pm
CJColucci (mail):
For the "unintended consequences" crowd, it is damn near certain that a constitutional amendment banning flag burning -- and don't get me started on HRC's silly statute -- would lead to more burned flags. Is that what we want?
2.8.2006 3:38pm
Duncan Frissell (mail):
Eugene,

I restrained myself from posting a comment about reestablishing the Freeman's Oath and excluding the disloyal from our national life through this mechanism. Granted getting rid of Salvadoran commies is tempting. But there would be disadvantages.

One can, however, easily distinguish religious diversity from diversity of national loyalty (otherwise get rid of the nation).
2.8.2006 3:39pm
nk (mail) (www):
Under the Model Penal Code if you say to someone "I spit on you" but do not actually spit on him and he becomes enraged and kills you he does not have the option of having the charge of murder reduced to voluntary manslaughter. However, if you do actually spit on him he does. I am very happy that the First Amendment has never been stronger in our history than it is now, but honestly "symbolic speech" is a legal fiction and contrary to both intuition and experience. Words can go in one ear and out the other (have you ever been the target of a harangue by a street person?) but actions have far greater impact and resonance. Instead of flag burning, how about spreading a glag on the floor and inviting people to walk on it? Should it be more tolerable than "Will you have sex with me for $100.00" which is purely words but in my state is punishable with up to 364 days in prison? If we can go beyond not being forced to drink hemlock for expressing unpopular ideas ... the laws are a mechanism for the function of society. If a supermajority wants to ban flag burning then it probably contributes to the healthy functioning of the society for an anti-flag burning amendment to pass.
2.8.2006 3:48pm
Kipli:
One can, however, easily distinguish religious diversity from diversity of national loyalty (otherwise get rid of the nation).

I don't understand: are you saying that allowing speech that offends religious people encourages religious diversity (a good thing?), whereas allowing flag burning encourages loyalty diversity (a bad thing?)?
2.8.2006 3:51pm
JunkYardLawDog (mail):
Republication of the cartoons boils down to this: Depicting Mohammed in violation of Muslim tenets strikes a blow at the very heart of Islamic beliefs, and such sacrilegious desecration of their beliefs is so offensive and hurtful that it simply should not be allowed, even under the guise of "free speech."

I think this turns the proper question on its head. The proper question is: Doesn't forcing a society through threats of and actual violence/murder/riots to observe the tenets of the Muslim faith (such as this claimed prohibition against depictions of Mohammed) force them to become Muslim's in practice if not in their hearts? Isn't being forced against one's will to adhere to the beliefs of another's religion "such sacrilegious desecration of the non-Muslim's religious beliefs and is so offensive and hurtful to them that it simply should not be allowed, even under the guise of "tolerance".

Put more simply, we must be intolerant of the intolerant Muslims.

Regarding the flag burning amendment, I think it is distinguishable in that a country is entitled should it so wish to protect the national symbols of that country and for which over a million soldiers have suffered and died. Its not different than a law criminalizing the vandalizing of a war memorial or the Washington monument. Its not a free speech issue at all in my opinion. Whereas the Muslim question is BOTH a free speech and free exercise of NON-Muslim religion question.

Finally, it would be a hell of a lot easier to take the Muslims protesting the cartoon serious, if they weren't so silent and accommodating of Muslims who hack people's heads off on video tape. Nothing pisses on the face of Mohammed more than this, but sadly I think Chris is right when he points out the dual nature of Muslim thinking. Whenever they talk about how Muslim's must be treated they ARE NOT talking about how non-Muslim's must be treated. We will not see the end of this dual track thinking on rights and customs, until we hear Muslim's beginning to stop saying "Treat Muslims the way we demand you treat Muslims" and start saying instead "treat Muslims the same way we Muslims treat everyone else".

Someone said above the Muslims are 200 years behind the times. I'd say that's about right. Maybe as long as 400 years. They were also right when they said we need to start bringing them along. The way to do that is to standup to their violent blackmail instead of rewarding it with a slow capitulation. Otherwise someday we will wake up to find that living in a supposedly democratic society that is extremely sensitive to the Muslim community isn't any different from living under a dictatorship of Sharia law.

Says the "Dog"
2.8.2006 4:01pm
sbw (mail) (www):
No sensible person can justify supporting a flag-burning amendment. As Colin Powell pointed out in his letter written in opposition, it is the Constitution we protect, not the flag.

One cannot talk a way around the fact that supporting such an amendment tramples on other provisions of the Constitution.

And why bother? Anyone with a gnat's intelligence can tell the difference between a symbol and that for which it stands. If I step on the word Volokh, does Eugene say ouch?
2.8.2006 4:03pm
Jeek:
political speech, which deserves the highest level of protection under the Constitution

Except when McCain-Feingold applies...
2.8.2006 4:08pm
jab (mail):
JunkYardDog:


to protect the national symbols of that country and for which over a million soldiers have suffered and died.


No... those soldiers died to protect the ACTUAL FREEDOMS... they did not die for a flag, a symbol of those freedoms to be sure... but a symbol nonetheless.



Its not different than a law criminalizing the vandalizing of a war memorial or the Washington monument.


There is a HUGE difference... the difference between PRIVATE property (burning a flag that I OWN) versus PUBLIC property (vandalizing a monument that I do NOT OWN).
2.8.2006 4:15pm
Freder Frederson (mail):
Its not different than a law criminalizing the vandalizing of a war memorial or the Washington monument.

What a silly and transparent argument. A war memorial and the Washington Monument are public property and defacing those are crimes of trespass and destruction of public property (as would be burning the flags that fly around them, or indeed any flag that you do not own). If I buy a flag and burn my own personal property as an act of protest, no crime against anybody elses, or the public's, property has been committed.

Sheesh.
2.8.2006 4:17pm
Freder Frederson (mail):
Except when McCain-Feingold applies...

Unfortunately, you are right until the Supreme Court realizes that money does not equal speech.
2.8.2006 4:19pm
Kovarsky (mail):
I would shy away from "no reasonable person" arguments. I tend, as a philosophical matter, to believe free speech enshrines a SET of values: self-expression, political truth, to name two. My belief about which values free speech should enshrine is different from my belief in what the framers thought they were enshrining. While as a philosophical matter, I think all expressive speech should be protected because self-expression is an important free speech value, but it's not clear that the framers weren't just contemplating political speech.

It just so happens that flag burning IS political speech, so it seems that there is no problem. But the anti flag burning proposal (co-authored by Hillary, scary) is a proposed AMENDMENT, not a proposed STATUTE.

so we're not talking about what "reasonable people" thought the framers meant, because it is in the very nature of an amendment to alter the framer's meaning. at that point - unconstrained by reference to what the framers thought - can you really say that "no reasonable person" could support the amendment?

i mean, i certainly don't - but i haven't fought in any wars, and i can certainly see the reasonableness in people that have fought and love this country wanting to defend the integrity of the country's quintissential symbol. now i would tell them that they're going about protecting that symbol's integrity all wrong - the best way to protect it's integrity is to protect in the extreme the values it stands for. but their disagreement with that is not "irrational?"

and by the way, the washington monument analogy is terrible. if you had your own personal washington monument, go ahead, desecrate it all you want, but there's only one. the disanalogy is one of scarcity and rivalrousness, not one of speech interests.
2.8.2006 4:30pm
Kendall:
Put more simply, we must be intolerant of the intolerant Muslims.

So I'll ask again: What about intolerant Christians? There was a flap in Ireland around the time of JPII's death and Benedict's rise to the Papacy about the depiction by a betting company, Paddy Powers of Jesus and the others at the Last Supper as gamblers, betting, playing cards, etc. Many Christians protested this as "blasphemous" and Paddy Powers finally appologized for their "oversight."

I don't think anyone's questioning religious freedom here, nor are is anyone questioning the right to BE offended as well as the lack of a right NOT to be offended. But my question is, would there be so much outrage at the REQUEST to curtail one's speech if it were a Christian group pushing for that supression?

I think Professor Volokh's post is a good starting point afterall, the problem is that its comparing apples to oranges. So lets work on some apples to apples comparisons.
2.8.2006 4:33pm
David Wangen (mail):

Republication of the cartoons boils down to this: Depicting Mohammed in violation of Muslim tenets strikes a blow at the very heart of Islamic beliefs, and and such sacrilegious desecration of their beliefs is so offensive and hurtful that it simply should not be allowed, even under the guise of "free speech."


The problem with this argument is actually quite simple: using Mohammed's image is considered blasphemy because he wanted to prevent idolatry.

By prohibiting satire of their Prophet, they are in fact doing the exact opposite of his intentions.
2.8.2006 4:40pm
Kovarsky (mail):
David,

Awesome point.

Lee
2.8.2006 4:47pm
Porkchop (mail):

Porkchop I think you are missing the difference between our Constitution and the documents I cited.

No, I understand the difference. I just don't understand why they put up with the construct they have -- something about the dignity of man and all that Enlightenment stuff, ya know.

Maybe I'm just old-fashioned (and I did grow up within a a few miles of the stronghold of the Freemen, after all). I used to drive by there a lot when I was young. I didn't know any of them myself, but some of my friends went to high school with some of them.
2.8.2006 4:50pm
Robert Schwartz (mail):
You first have believe that burning something is speech. I doubt it.
2.8.2006 5:17pm
Kovarsky (mail):
Robert,

That position would lose 9-0 in the supreme court. Every Justice acknowledges the principle that nonverbal acts can constitute speech within the purview of the First Amendment.
2.8.2006 5:21pm
abb3w:
For myself, I've been opposed to the idea of a flag burning amendment for some time, so the question is almost moot. Flag burning doesn't bother me; it's only a symbol. Now, if you want to talk about banning the burning of the Constitution or the Bill of Rights, I might listen; there, it's not just a symbol, but also the substance. And, implicitly, those who reject the substance can be readily argued as no longer deserving of its full protections.
2.8.2006 5:42pm
KeithK (mail):
WOuld there be as much outrage at the request to curtail speech if the controversy was over (perceived) anti-Christain speech? Certainly not, because Christain groups in this day and age do not go around shouting "Death to Denmark" when they've been offended. The outrage is not based on the religion of those ocmplaining. It's based on their behavior and the legitimate fear that they will commit violent acts.

As Lileks might say, it's hard to imagine a bunch of Lutherans burning down an embassy over The Last Temptation of Christ.
2.8.2006 5:42pm
Noah Klein (mail):
Kendall,

But my question is, would there be so much outrage at the REQUEST to curtail one's speech if it were a Christian group pushing for that supression?

The protests in the Middle East are not a "request" it is a demand. Requests by their very nature are not violent. This is violent. The cartoon depicting Mohammed with a bomb coming off of his head is wrong, but its ridiculous to drum it up to the level to which it has come.

Coming back to the issue of the post, I agree wholeheartedly with the Prof. Volokh's point. Symbolic speech is symbolic speech. One cannot be protected and other violated.

Noah
2.8.2006 5:50pm
Ron Hardin (mail) (www):
Flag burning is our free speech canary in the coal mine.

It infuriates the right people so much, that as long as it's allowed, most likely free speech is okay.
2.8.2006 5:53pm
JunkYardLawDog (mail):

Some have said:

If I buy a flag and burn my own personal property as an act of protest, no crime against anybody elses, or the public's, property has been committed.

and

There is a HUGE difference... the difference between PRIVATE property (burning a flag that I OWN) versus PUBLIC property (vandalizing a monument that I do NOT OWN).

Yes these are valid points, but not fully persuasive. The Flag could be held to include BOTH elements of private property AND elements of PUBLIC property. A country has a right, if it so desires, to protect the PUBLIC property elements embodied in the flag.

Its against the law to destroy or deface the cash dollar bills in your pocket. You own those dollars. They are your private property. You can put those dollars in a box and pass them to your heirs pursuant to your will. They have all the indicia of private property, just as much as the chair you own or the car your own. Yet, despite the fact that they are private property there is some element of public property that is also part of those physical dollar bills, and the public property element is protected by laws making it a crime to deface or destroy those dollar bills. Same thing for the flag, if the country so chose to make it the law.

Of course we are discussing here a theory or system of freedom of speech and what things might be or could be, and to state that your private property analysis is the be all/end all of such an undertaking is a bit shallow in my opinion.

I'm kind of on the fence regarding flag burning laws/amendments. I wouldn't be upset if there was one, but I don't have a lot of time to try and make one happen either. I absolutely do not view such an action as the tragic end of free speech in this or any other country. Its not like some would seem to believe that burning the flag is the only way to express whatever political point one is trying to make.

Finally, regarding the pro McCain-Feingold property isn't speech proponents, if use of property isn't speech then how can flag burning be speech? Flag burning is the use of property for speech? How is it rational for it to be legal to burn a flag yourself, but illegal to pay somebody to burn a flag for you? Yet that is exactly the kind of argument the property isn't speech people must make. If property isn't speech, then how could it be improper to have a law that says one can't spend money to acquire or build a printing press capable of printing more hand bills in a day than the average hand operated printing press? How is limiting money on TV spending different from limiting the money that can be spent on bigger better hand bill printing presses?

Says the "Dog"
2.8.2006 6:31pm
jvarisco:
I think that one could suggest the government has a legitimate interesting in promoting patriotism (e.g. the pledge in schools). Flag burning is so bad not because it is offensive but because it is unpatriotic; basically, it's symbolic treason. If one were to live in a religious Islamic state, it would be the same argument; but neither Denmark nor this country are such states, and so have no reason to ban such cartoons.
2.8.2006 6:40pm
frankcross (mail):
JunkYard, I've got a pretty strong hunch that if somebody destroyed currency as part of a political protest, the court would hold that to be protected speech.

I think the property distinction works pretty well for protected speech.
2.8.2006 6:44pm
Fire Marshall Bill (mail):
Just in case anyone is entertaining the though of purchasing my Mohammed-shaped* Dorito chip . . . there's no reserve!


*N.B. Factory flaw, not an artist/human being's rendition/depiction.
2.8.2006 7:02pm
Omar Bradley (mail):
For the poster who said that the propsition that burning and other nonverbal action isn't speech would lose 9-0 in the SC, apparently they haven't read the US Reports.

I suggest you go back and read Texas v Johnson, Cohen v California, Cox v Louisiana, Gibboney Storage, Kovacs v Cooper, Saia, Tinker v Des Moines, Street v New York and Halter v Nebraska.

No less than 25 separate Justices have held that the 1st amendment does not protect all nonverbal expression in all circumstances.

No less an absolutist than Hugo Black, Mr. "No Law means No Law" himself scoffed at the notion that the 1st Amendment protects flag burning, or any other type of arson or burning. If Hugo Black doesn't think the 1st amendment protects something, chances are it doesn't. His opinion in Street v NY is perfectly on point. Liberals such as Earl Warren, John Paul Stevens and Abe Fortas agreed with him. Not to mention conservatives like Rehnquist, O'Connor and Thomas. It's a bipartisan agreeement.

As Brother BLACK said:

It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense. It is immaterial to me that words are spoken in connection with the burning. It is the burning of the flag that the State has set its face against. "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." Giboney v. Empire Storage &Ice Co., 336 U.S. 490, 498 (1949). In my view this quotation from the Giboney case precisely applies here. The talking that was done took place "as an integral part of conduct in violation of a valid criminal statute" against burning the American flag in public. I would therefore affirm this conviction.

I couldn't have said it any better.

If you read Halter the SC was 8-1 that statutes regulating how a flag is used, displayed or mutilated(including burning) are Constitutional and that court included Holmes and Harlan and the only dissenter was the author of the infamous Lochner case, Peckham.

I accept the Texas v Johnson decision but I still think it was wrongly decided(especially since the flagin question WAS NOT private property, it was stolen from a bank). At this point Stare Decisis concerns might lead me to uphold it but I'd do it on a de minimis approach and not extend it any further. If it was overruled I wouldn't shed any tears.
2.8.2006 7:05pm
Duncan Frissell (mail):

I don't understand: are you saying that allowing speech that offends religious people encourages religious diversity (a good thing?), whereas allowing flag burning encourages loyalty diversity (a bad thing?)?

No I was just saying that it was arguable (though I don't argue it) that since one can imagine a nation limited to one race or one religion you could imagine a nation limited to one national loyalty.

Nations were invented in the 1640s to end the Thirty Years War. As a human creation they can be designed in different ways. One could imagine a country like the US restricted to those who were loyal to a country like the US. Oath takers. Not blood or faith but idea. A voluntary association.

Or you could drop the idea of a nation state entirely and replace it with intermixed affinity groups co-existing in different legal regimes. That's been done before too.
2.8.2006 7:36pm
Perseus:
Sorry, but I don't buy the argument that the drafters and the interpreters of the First Amendment originally understood the amendment to provide such a broad scope of protection (I agree with Leonard Levy), and under the interpretation of many of the leading Framers, flag burning would constitute sedition.
2.8.2006 7:40pm
Kendall:
Noah and KeithK

I find it troubling that where the only substantive question is the reaction of the group that is the subject of the speech, and where both groups react negatively to that speech you place a higher emphasis on violent reaction. No one condones or justifies violences. I doubt it can be argued that the muslim reaction has been temperate in the slightest.

Nonetheless it seems clear from others posts such as:

Call me unpersuaded by the argument that one cost of a flag burning amendment (which I really don't care about either way) is that we can no longer say to Muslims "We allow all sorts of desecrations, not just those that offend Muslims."

Why? Because Muslims simply won't see the parallel. They are unique. God has given them the truth. We see the parallel in "the flag is sacred to some, but it can be burnt. Mohommed is sacred to others, and he can be mocked. Everyone's sacred cows are fair game" and so on. But the typical Muslim would respond "the American flag is not sacred. Burning it is not blasphemy. Portraying Mohommed is blasphemy. There is no such thing as sacred to me vs. sacred to you. There is only that which is revealed to be sacred by God in the Koran." I find this depressing, but arguments that try to make parallels are probably wasted breath


not to mention:

It seems sorta hypocritial of the extreme muslim movement to say they are offended by the cartoons and then legitimize the cartoons by doing the exact same thing they portray.

I feel your arguement doesn't hold water. The cartoons are mere reflections of reality. Muslims bomb people because of Mohammed and Allah. They are accurate commentary and truthful. You would hide the truth for the sake of what? To buckle under meaningless violence and intolerance. Isn't this what the Nazis did leading up to the elections in Germany?

The truth needs to be printed at all costs.


that some posters seem to feel that it is muslims themselves and the very nature of Islam that justifies printing the cartoons. In other words, that those cartoons purpose is to make them mad and that's a good thing, no remorse, no nothing. Its not about the violence for some people, its about the fact that the Muslims object to it at all that causes some people to be interested.

To me, it sounds like Professor Volokh was on target - the feeling is that offensive speech is permissable so long as the individual being offended is someone else and if they complain about it they're whining. If you get offended though you have every reason and justification.

Don't think I'm condoning violence though. I think the cartoon story is a legitimate exploration of freedom of speech. But I think the REAL story is the muslim overreaction not who is or is not printing the cartoons or that muslims are offended. Of COURSE they're offended, that's the point!
2.8.2006 7:51pm
Ben Coates (mail):
As far as I can tell from a little googling, there is no federal law against destroying US currency. 18 USC 331 bans fradulent altering/mutiliation of coins, but that's for things like counterfitting and shrinking coins (to steal precious metals).
2.8.2006 7:54pm
JunkYardLawDog (mail):
Ben, You may be right that I was confused about the exact nature of the law. If there was a law that flatly banned burning currency, even one's own currency would it be constitutional? I think it would or should be. Same for flag burning.

Says the "Dog"
2.8.2006 8:12pm
Omar Bradley (mail):
There's laws against burning leaves for heaven's sake. Laws against bonfires. But no laws against flagburning, come on. It's the burning that's the crime. You can inveigh and protest against the flag all you want, but you can't set fires. Just like you can't get a bunch of flags and blow them up with C4 or semtex, or take a bunch of flags in some public area, pile them up and empty an M40 into them. It's not the speech, it's the conduct being regulated. The 1st amendment doesn't protect conduct. That's been settled SC doctrine ever since John Marshall picked up his quill.

In this country, until 1989, flagburning could be penalized. Now are you telling me that prior to 1989 this country was some dictatorship? During the Civil War period, when the nation fought to preserve the Constitution, flag burning was a capital offense.

Was this nation not free prior to 1989? Was there some "chill wind" blowing all throughout the 20th century? Please.

The SC has long recognized the difference between conduct and speech. Burning is conduct. If you asked 1000 people on the street, 999 would say burning is conduct. Justices as varied as Holmes, Harlan, Moody, Fuller, Day, White, Black, Warren, Fortas, White, Stevens, Blackmun, O'Connor, REhnquist and Thomas have all recognized it.

Do I think it's worth an amendment? Probably not. But amendments in response to SC decisions go all the way back to Chisolm, which I happen to think was correctly decided.
2.8.2006 8:19pm
Kovarsky (mail):
Omar,

No offense, but you completely misunderstood my point and I reread my post - the misinterpretation wasn't my fault. My point wasn't that all symbolic expression was protected, it was quite clearly that something is not excluded from first amendment protection merely because it is nonverbal speech.

Every justice agrees that the nonverbal character of a form of expression does not automatically exclude it from protection.

Very original quip about the U.S. reports, though.
2.8.2006 8:28pm
Brett Bellmore (mail):

Finally, it would be a hell of a lot easier to take the Muslims protesting the cartoon serious, if they weren't so silent and accommodating of Muslims who hack people's heads off on video tape. Nothing pisses on the face of Mohammed more than this,


Are we talking about the fictionalized Mohammed, the "prophet of peace", or the historical Mohammed, who spread Islam at the point of a sword, and who hacked off no small number of heads himself? Because I've long thought one of the problems we've got here is that the Jihadists aren't perverting Islam, and they know this quite well. It's the "live and let live" Muslims who are on shaky ground, theologically speaking.
2.8.2006 8:34pm
Kovarsky (mail):
Omar,

You're getting really worked up about a speech/conduct dichotomy that doesn't exist. Some verbal acts are not "speech" for first amendment purposes and some nonverbal acts are "speech" for those purposes. For goodness sake, drawing a cartoon is a nonverbal act.

And philosophically speaking, a vast amount of nonverbal conduct has expressive elements to it (dance, a sit in, giving someone the finger).

If you asked those 1000 people on the street whether that "conduct" of flag burning also "expressed" an idea, I bet you'd get close to 1000 yes's as well. The expression is precisely the thing that people find objectionable. People don't burn flags for heat, in the privacy of their own homes, or in place of fireworks on the 4th of July. People burn them to express something.
2.8.2006 8:38pm
Tom Tildrum:
Regarding the burning of currency, I offer this thought.
2.8.2006 8:52pm
Omar Bradley (mail):
And I can defecate on the street to express something but htere's public urination and decency statutes. I can expose myself to passersby on a public thoroughfare, doe sthe 1st amendment protect indecency and exposure? Of course not.

Like I said, read Justice Black's opinion in Street v NY. Hugo was the GREATEST defender of free speech the SC has ever known. NO ONE was more forthright in protecting the 1st amendment and even Black acknlowledged that flag burning is not protected.

It's not the expression at all. You can curse the flag all you want. You can say whatever you want about it. You can write whatever you want about it. But you can't set fire to things just because you feel like it.

Again, Justices from Black to Thomas to Warren to Fortas to White to Stevens to Holmes to Harlan to Jackson have ALL recognized this fundamental difference.

But I guess when it comes to the 1st amendment, they were all wrong. Hugo Black was really some radical dictator who didn't respect the Bill of Rights and the 1dt amendment. When someone says Hugo Black is all wet regarding the 1st amendment, in my view the burden is on them and it is a heavy one, to prove him wrong.
2.8.2006 8:57pm
Omar Bradley (mail):
It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense. It is immaterial to me that words are spoken in connection with the burning. It is the burning of the flag that the State has set its face against. "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." Giboney v. Empire Storage &Ice Co., 336 U.S. 490, 498 (1949). In my view this quotation from the Giboney case precisely applies here. The talking that was done took place "as an integral part of conduct in violation of a valid criminal statute" against burning the American flag in public. I would therefore affirm this conviction.
2.8.2006 8:58pm
JGR (mail):
During oral arguments in the flag-burning SCOTUS case, Scalia actually raised the point that burning the flag could be compared to "fighting words". I think recent events, and the subject of this thread, shows why this would be a very bad interpretation.
2.8.2006 9:04pm
Ben Coates (mail):
Are the anti-flag-burning laws being struck down always laws protecting just the flag (or government symbols, etc) or is there any history of banning flag-burning as part of a generally enforced ban on public burning? (arson?)

Is burning, say, a UCLA Bruins teddy-bear (no offense to the host) protected speech too?
2.8.2006 9:09pm
Kovarsky (mail):
Omar,

My point is that the no member has a court that just because something is nonverbal that it lacks expression and is therefore outside the ambit of first amendment protection. My point is not that any conduct containing words is protected.

If there is an answer to that, point me in the direction of a case. If you do not answer that point, I will assume you are in dialogue with someone else.

JGR,
I think scalia might have a good point. Fighting words are still speech within the meaning of the first amendment. They just enjoy a lesser degre eof constitutional protection. They can be regulated as long as they are viewpoint neutral. This is in contrast to obscenity, which is not considered speech.
2.8.2006 9:21pm
Robert West (mail) (www):
Omar - one of the things i've never understood about Texas v. Johnson is this: why did Texas prosecute Johnson for burning the flag but not prosecute him for stealing it? The theft conviction would have held even under the logic the Supreme Court used in the case.
2.8.2006 10:21pm
Omar Bradley (mail):
I guess I misunderstood what you were saying. Nonverbal expression CAN be considered speech but it is not ipso facto speech. Expressive conduct CAN be considered speech but all nonverbal conduct does not fall under speech. Nonverbal "speech" also has less a presumption of protection than verbal speech.

Again, per Justice Black:

It is immaterial to me that words are spoken in connection with the burning. It is the burning of the flag that the State has set its face against. "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute."

Per Justice Thomas:

Accordingly, this statute prohibits only conduct, not expression... That the First Amendment gives way to other interests is not a remarkable proposition.

Justice Souter:

Concern about employing the power of the State to suppress discussion of a subject or a point of view is not, however, raised in the same way when a law addresses not the content of speech but the circumstances of its delivery. The right to express unpopular views does not necessarily immunize a speaker from liability for resorting to otherwise impermissible behavior meant to shock members of the speaker's audience

Justice Harlan:

MR. JUSTICE HARLAN, concurring.

The crux of the Court's opinion, which I join, is of course its general statement, ante, at 377, that:


"a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

I wish to make explicit my understanding that this passage does not foreclose consideration of First Amendment claims in those rare instances when an "incidental" restriction upon expression, imposed by a regulation which furthers an "important or substantial" governmental interest and satisfies the Court's other criteria, in practice has the effect of entirely preventing a "speaker" [391 U.S. 367, 389] from reaching a significant audience with whom he could not otherwise lawfully communicate. This is not such a case, since O'Brien manifestly could have conveyed his message in many ways other than by burning his [flag].

Chief Justice WARREN:(speaking for 7 Justices)
We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea...This Court has held that when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.

Mr. Justice JACKSON, concurring.

I join the judgment sustaining the [Texas statute because I believe that burning a flag] conflicts with quiet enjoyment of home and park and with safe and legitimate use of street and market place, and that it is constitutionally subject to regulation or prohibition by the state or municipal authority. No violation of the Due Process Clause of the Fourteenth Amendment by reason of infringement of free speech arises unless such regulation or prohibition undertakes to censor the contents of the expression... It treats the issue only as one of free speech. To my mind this is not a free speech issue. 1 [Texas] has in no way denied or restricted the free use, even in its park, of all of the facilities for speech with which nature has endowed the appeliant. It has not even interfered with his inviting an assemblage in a park space not set aside for that purpose. 2 But can it be that society [334 U.S. 558 , 569]has no control of apparatus which, when put to unregulated proselyting, propaganda and commercial uses, can render life unbearable?

Justice GOLDBERG:
From these decisions certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy... One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon [burning a flag] in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have [379 U.S. 536, 555] the duty and responsibility to keep their streets open and available for movement...

We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as [burning the flag], as these amendments afford to those who communicate ideas by pure speech. See the discussion and cases cited in No. 49, post, at 563. We reaffirm the statement of the Court in Giboney v. Empire Storage &Ice Co., supra, at 502, that "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed."




The disagreement is whether flagburning is symbolic speech absolutely protected by the 1st amendment. Hugo Black, Earl Warren, Byron White, William Rehnquist, Clarence Thomas, John Paul Stevens, and Sandra Day O'Connor were on one side. You're on the other.

It's not really the biggest deal. Texas v Johnson was not up there with say Brown or McCulloch v Maryland as some landmark decision. I think it was wrongly decided. I think there's ample precedent to support that. But do I lose sleep over it? Not really.
2.8.2006 10:47pm
Omar Bradley (mail):
From perhaps the most liberal Justice of the 20th century Frank Murphy:

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. 2 There are certain well-defined and narrowly limited classes of speech, the prevention [315 U.S. 568, 572] and punishment of which has never been thought to raise any Constitutional problem. 3 These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 4 It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 5 'Resort to epithets or personal abuse [or flagburning] is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U.S. 296, 309 , 310 S., 60 S.Ct. 900, 906, 128 A.L.R. 1352.

We are unable to say that the limited scope of the statute as thus construed contravenes the constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. Cf. Cantwell v. Connecticut, 310 U.S. 296, 311 , 60 S.Ct. 900, 906, 128 A.L.R. 1352; Thornhill v. Alabama, [315 U.S. 568, 574] 310 U.S. 88, 105 , 60 S.Ct. 736, 745. This conclusion necessarily disposes of appellant's contention that the statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. Cf. Fox v. Washington, 236 U.S. 273, 277 , 35 S.Ct. 383, 384.8

Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that ["America we spit on you" and burning the flag is conduct] likely to provoke the average person to retaliation, and thereby cause a breach of the peace

And from Mr. Roe v Wade and Callins v Collins himself:

MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK join.

I dissent, and I do so for two reasons:

1. Cohen's absurd and immature antic, in my view, was mainly conduct and little speech. See Street v. New York, 394 U.S. 576 (1969); Cox v. Louisiana, 379 U.S. 536, 555 (1965); Giboney v. Empire Storage Co., 336 U.S. 490, 502 (1949). The California Court of Appeal appears so to have described it, 1 Cal. App. 3d 94, 100, 81 Cal. Rptr. 503, 507, and I cannot characterize it otherwise. Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a consequence, this Court's agonizing over First Amendment values seems misplaced and unnecessary.
2.8.2006 11:04pm
JGR (mail):
About Scalia's remarks..

I went back and read his comments, and I see that after mentioning "fighting words", he immediately added "You have no right to engage in conduct that's likely to incite a riot". This is indeed different from the impression my of my post (Apologies). It would seem to suggest that one could burn a flag at an anti-American rally or another place where it wouldn't be likely to incite a riot. But you couldn't do it on Main Street (even if burning were otherwise legal, which I doubt it would be).
2.8.2006 11:05pm
JGR (mail):
Er, I just realized that burning a flag at a large anti-American rally COULD incite a riot, but I was mentally thinking about a gathering of like-minded people, not a large and public rally.
2.8.2006 11:11pm
Kovarsky (mail):
Omar,

You are absolutely, positively, not listening. I am not saying that it is clear that flag burning is protected in every context. I've never said that.

And, not that this was ever my point, but the conclusion you're trying to draw from justice black - that he's saying that flag burning does not contain an expressive element - is self-evidently NOT what he's saying. I can't believe I'm taking the time to go through this with you, since you keep brazenly ignoring my repeated request to answer my question, but the Black quotation above says:


rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute


that does not say that flag burning does not have an expressive element. it says that the constitution does not furnish protection to that expression when that expression is associated with conduct proscribed under a valid criminal statute (which is circular logic, but I hardly want to focus the discussion there at this point)

i don't know what you're talking about with the thomas quote. he wasn't on the court in johnson. if you'd care to provide context for the excerpt rather than sneak it by me, i'll be happy to address it. the context is not self-evident from the quotation. i'm not doing your work for you.

this is quite tiresome. justice souter's quote also doesn't say that flag burning doesn't have an expressive component:

Concern about employing the power of the State to suppress discussion of a subject or a point of view is not, however, raised in the same way when a law addresses not the content of speech but the circumstances of its delivery. The right to express unpopular views does not necessarily immunize a speaker from liability for resorting to otherwise impermissible behavior meant to shock members of the speaker's audience

I don't think this merits explanation. He's plainly saying that the fact that there is expressive content in an action does not immunize the expressor from liability.

I'm not continuing to go through this. Jackson isn't saying that flag burning is not expressive; he's saying that the restriction did not regulate the expression in it.

Warren quite plainly admits that there are both expressive and nonexpressive elements; he just holds that when the interests in regulating the nonexpressive ones are sufficiently weighty, the expressive ones can be regulated alongside them.

This is tedious. If you really do understand the issue as I've framed it, you know you're misquoting authority.
2.8.2006 11:14pm
Kovarsky (mail):
Omar,

I just realized what a dirty move you just pulled with the thomas quote. I'm at the gym so I can't explain now, but that's his dissent from VA v. Black, which was the cross burning case.

I remember that he definitely said that his argument that cross-burning did not have an expressive component was LIMITED to those instances where cross burning was used to intimidate.

I'm normally not this combative, but I'm actually going to take the trouble to find the quote where he expressly rejects your position in the opinion you're quoting.

Why did you do that?
2.8.2006 11:38pm
Omar Bradley (mail):
Of course it's expressive content. Just about every action is expressive conduct in one way or another. Blowing up the world trade center was expressive. Exposing yourself in public is expressive. Lots of things are expressive.

The issue is whether the expression is covered by the first amendment. In my view, and Hugo Black's for that matter, burning a flag is NOT expression covered by the 1st amendment. But I guess you're more protective of the 1st amendment than Hugo Black.

The Thomas quote is from VA v Black. I assume you disagree with his dissent and would hold that cross burning is protected by the 1st amendment. Flag Burning and Cross Burning are on the same page in my book. The 1st amendment is not a license to set things on fire.

I understand your view of the 1st amendment perfectly. I just think it's wrong. When it comes to the 1st amendment, I'll go with Hugo Black, Earl Warren, Byron White, Abe Fortas(who wrote the Tinker opinion BTW), John Stevens, Bill Rehnquist, Sandra Day O'Connor and others.
2.8.2006 11:44pm
Omar Bradley (mail):
If you read the opinion, Thomas EXPLICITLY couples cross burning with flag burning and even goes as far as to cite Rehnquist's dissent in Texas V Johnson. That's why I used the quote. I think it's a good bet that if Thomas were on the SC in 1989 he would have voted with the Chief and Rehnquist's opinion would have been a majority.

Do you agree with Thomas' dissent? How would you have come down in Virginia v Black?
2.8.2006 11:48pm
Omar Bradley (mail):
Of course "the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Ante this page. None of us disagrees with that proposition. But it is equally well settled that certain METHODS of expression may be prohibited if (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker's freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition.

It may well be true that other means of expression may be less effective in drawing attention to those ideas, but that is not itself a sufficient reason for immunizing flag burning. Presumably a gigantic fireworks display or a parade of nude models in a public park might draw even more attention to a controversial message, but such METHODS of expression are nevertheless subject to regulation.

These cases therefore come down to a question of judgment. Does the admittedly important interest in allowing every speaker to choose the METHOD of expressing his or her ideas that he or she deems most effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value. The opinions in Texas v. Johnson demonstrate that reasonable judges may differ with respect to each of these judgments.

The individual interest is unquestionably a matter of great importance. Indeed, it is one of the critical components of the idea of liberty that the flag itself is intended to symbolize. Moreover, it is buttressed by the societal interest in being alerted to the need for thoughtful response to voices that might otherwise go unheard. The freedom of expression protected by the First Amendment embraces not only the freedom to communicate particular ideas, but also the right to communicate them effectively. That right, however, is NOT ABSOLUTE - the communicative value of a well-placed bomb in the Capitol does not entitle it to the protection of the First Amendment. [496 U.S. 310, 323]

From US v Eichman. Of note, Roberts was on the brief for the US in that case.
2.8.2006 11:57pm
Kovarsky (mail):
Omar,

I have a very big problem with what you keep saying, no longer because you disagree with my point, but because you've revealed yourself to assume authorship over the opinions you cite. There are a full 14 paragraphs in between the two sides of the ellipsis you provide in your post above, and everything in between them quite plainly contradicts what you are trying to insinuate by omitting that text. That's deceitful.

I'm not going to drone on about this, so I'm going to confine myself to Thomas. And I'm going to address your point - whether certain justices think flag burning is constitutionally covered speech - rather than my original point, the repeated ignoring of which I will not belabor, since you finally acknowledge it in your last post.

You quote this in support of the proposition that Thomas would consider a flag burning amendment unconstitutional:

Accordingly, this statute prohibits only conduct, not expression... That the First Amendment gives way to other interests is not a remarkable proposition.

This is actually the first paragraph of the opinion:

Although I agree with the majority's conclusion that it is constitutionally permissible to "ban … cross burning carried out with intent to intimidate," see maj. op., at 17, I believe that the majority errs in imputing an expressive component to the activity in question, see maj. op., at 17 (relying on one of the exceptions to the First Amendment's prohibition on content-based discrimination outlined in R. A. V. v. St. Paul, 505 U.S. 377 (1992)). In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means. A conclusion that the statute prohibiting cross burning with intent to intimidate sweeps beyond a prohibition on certain conduct into the zone of expression overlooks not only the words of the statute but also reality.

Contrary to what you are implying for reasons that I still don't understand, VA v. Black only said that it was constitutional to punish cross burning with the intent to intimidate

In the process of making this holding, the Court said (expressly the argument I made):

It is true, as the Supreme Court of Virginia held, that the burning of a cross is symbolic expression. The reason why the Klan burns a cross at its rallies, or individuals place a burning cross on someone else's lawn, is that the burning cross represents the message that the speaker wishes to communicate. Individuals burn crosses as opposed to other means of communication because cross burning carries a message in an effective and dramatic manner.2

The case is complicated and about some evidentiary presumptions, but Thomas took issue with the notion that cross burning with THE INTENT TO INTIMIDATE was expressive. He makes it quite clear that he would not sustain a flat ban on cross burning.

Shame on you for knowingly implying that thomas would support a flat ban on flag-burning. He wouldn't even sustain a flat ban on cross-burning.

There are answers to all your other remarks, ,but given this episode, I'm not inclined to answer them.
2.9.2006 12:12am
Omar Bradley (mail):
Kovarsky,

You are completely wrong. In Thomas' opinion, it is clear that cross burning is DE JURE intimidation. It ALWAYS has an intent to intimidate. There IS NO expressive quality to it AT ALL. It wasn't limited at all. It was very broad. There is NEVER an expressive component to cross burning that implicates the 1st amendment. One can never claim the protection of the 1st amendment when it comes to cross burning.

Although I agree with the majority's conclusion that it is constitutionally permissible to "ban ... cross burning carried out with intent to intimidate," see maj. op., at 17, I believe that the majority errs in imputing an expressive component to the activity in question(IE, THERE IS NO expressive component. None. Zero. Even if you burn a cross without an intent to intimidate, you can still be prosecuted becuase you have intimidated. You're intent is irrelevant.)

Accordingly, this statute prohibits only conduct, not expression. And, just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point. In light of my conclusion that the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests.

The plurality, however, is troubled by the presumption because this is a First Amendment case. The plurality laments the fate of an innocent cross-burner who burns a cross, but does so without an intent to intimidate. The plurality fears the chill on expression because, according to the plurality, the inference permits "the Commonwealth to arrest, prosecute and convict a person based solely on the fact of cross burning itself."

IOW, the 1st amendment is not involved with cross burning. Even though some idea is expressed through cross burning, that idea is not protected by the 1st amendment. The 1st amendment does not cover all expression.

I see the flag burning law the same way. It addresses only conduct. In my view, there is no expressive component in flag burning, or at least certainly not one that implicates the 1st amendment.

We just differ, no big deal. You think flag burning laws as in Johnson and Eichman are unconstitutional. I don't. The world will go on.
2.9.2006 12:17am
Noah Klein (mail):
Omar and others,

I am going to try to settle this. I doubt it will work, but let's see. Omar, I believe I am correct in saying that your objection and other people's objections to flag-burning as protected speech is that it is the action of burning the flag which is legislated against and not the message expressed. This is completely false.

I wonder how many people in this forum were either Boy Scouts or members of the U.S. military. I was a Boy Scout. I went all the way to Life Scout and then lost interest in it. The reason I bring this up is that at one of the summer camps I attended I witnessed a flag-burning. This would obviously appear like a very weird thing for Boy Scouts to do, if you did not understand the context. The flag that was burned was very worn and had been determined to need disposal. So, at this summer camp, I witnessed the proper disposal of a tattered flag. I might say it is a very moving experience. The words at ceremony express the reverence that all in attendance held for the flag and its need for respectful destruction.

The procedures for the disposal of the flag are laid out in the rules of the military. At a ceremony of the disposal of an unservicable flag the commander will state:

"Comrades, we have presented here these Flags of our Country which have been inspected and condemned as unserviceable. They have reached their present state in a proper service of tribute, memory and love.

"A Flag may be a flimsy bit of printed gauze, or a beautiful banner of finest silk. Its intrinsic value may be trifling or great; but its real value is beyond price, for it is a precious symbol of all that we and our comrades have worked for and lived for, and died for-a free Nation of free men, true to the faith of the past, devoted to the ideals and practice of Justice, Freedom and Democracy.

"Let these faded Flags of our Country be retired and destroyed with respectful and honorable rites and their places be taken by bright new Flags of the same size and kind, and let no grave of our soldier or sailor dead be unhonored and unmarked. Sergeant-at-Arms, assemble the Color Guard, escort the detail bearing the Flags and destroy these Flags by burning. The members shall stand at attention."

And the end of the ceremony the flag is burned. I must tell you it is a very moving.

Here is a link to the U.S. military's website on disposal of a tattered flag.

While you and I will rightly say that burning the U.S. flag is both immoral and stupid means of protest (since you are burning the symbol of the country that allows you to burn that symbol), the law against burning a flag is not regulating the conduct, but the message that is expressed. If it were regulating the conduct, then this ceremony would be impossible. You and I both know that an anti-flag burning statute is regulating the message.

Noah
2.9.2006 12:19am
Omar Bradley (mail):
Kovarsky,

So you think that if there was a law that said Cross Burning is banned, regardless of one's intent to intimidate, that Thomas would strike it down?

How so, when Thomas said that the intent is ALWAYS to intimidate. The act itself is DE JURE intimidation. Cross Burning can never be done without an intent to intimidate.

BTW, I notice that you've failed to address that Thomas opens his opinion by explicitly coupling it with the flag burning case and approvingly cites Rehmquist's dissent to frame his argument and lay it out. I find it hard to believe that he'd explicitly couple the two and cite Rehnquist's dissent if he thought Rehnquist was wrong in that case.
2.9.2006 12:23am
Kovarsky (mail):
And, by the way, I completely agree with thomas's dissent. I don't believe threats are speech within the meaning of the first amendment. Of course they convey a message, but that message is completely dominated by the functional elements of a threat, which is not to convey a thought, but to coerce behavior.

I'm not sure how you can shoehorn the flag burning rationale into this threat rationale though. If someone were prosecuted because she burned a flag in an attempt to threaten an armed serviceman with violence or something like that, i certainly wouldn't say that the burning was constitutionally protected.

but when the burning is to convey a message of opposition, that strikes me as core protected speech - its a quintissentially political message. I don't care how many people it offends.
2.9.2006 12:26am
Omar Bradley (mail):
Noah,

It's not regulating the message at all. Johnson could have cursed out the flag. He could have spewed invective against it for as long he wanted. The state couldn't regulate his message. They can regulate how he chooses to deliver it. Could Johnson and a few of his buddies gathered around and defecated or urinated on it to express a message? Could they have roasted a pig on a spit above it an emptied its entrails on to it? It was the action that was penalized. And even if he burned the flag in praise of it he could still be penalized. The reason why he burned the flag was irrelevant.

Your Boy Scout and Military article has no relevance either. Of course in certain instances the flag can be burned if it's for a certain purpose and procedure. It's because there's a whole process and the flag is so important that that's the only way to give it respect. The TX statute didn't proscribe flag burning in toto. IE, the Boy Scouts could still burn the flag in their cermonies under the TX law.

It's because the falg is considered dead at that point and the burning is part of a "funeral ceremony" for it. Just like, if someone dies and levaes it in their will or even no explicit instructions, the family can have them cremated. In certain conditions, buring a human being is legal. But if you just walked up to someone on the street and lit them on fire, you'd be on trouble.

Again, I'm not saying that falg burning is required to be illegal. But I don't think it's a right protected by the 1st amendment. I do think the state and Congress can regulate how it is to treated within limits, as Justice Black points out in Street v NY.
2.9.2006 12:35am
Kovarsky (mail):
Omar,

This is the coupling you're talking about:

In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred, see Texas v. Johnson, 491 U.S. 397, 422—429 (1989) (Rehnquist, C. J., dissenting) (describing the unique position of the American flag in our Nation's 200 years of history), and the profane. I believe that cross burning is the paradigmatic example of the latter.

Yes, he couples them together, but I think the idea that he means to imply that statutes prohibiting the burning of both would be equally constitutional to be beyond untenable.

Oy, fine, I'll lay out what Thomas says:

(1) the history of cross burning is to intimidate
(2) a statute that prohibits intimidation prohibits conduct, not speech
(3) to the extent that cross-burning intimidates, it is not speech and should not be addressed under first amendment cases
(4) ok, if you guys (the majority) insist on analyzing this under first amendment doctrine, the statute does not require that intimidation automatically be attributed to the defendant on the basis of cross burning; it's just an inference that can be overcome by an evidentiary showing that the burning was not meant to intimidate; in that case the statute does not apply, alleviating any due process concerns

theres some more reason's but they're not important here.

Thomas says, over and over and over again, that the entire REASON the statute proscribes conduct is PRECISELY because it only criminalizes cross burning that is intended as a THREAT. Now he certainly believes that is the status of most cross burning, but he takes extraordinarily pains to say that a state cannot punish someone burning a cross that does not intimidate.

If you could show Thomas that the intent to burn a cross was not to intimidate, he would say you were protected. So unless you could show him that burning a flag was meant to intimidate, he's been QUITE clear that hes going to uphold the statute.
2.9.2006 12:41am
Kovarsky (mail):
excuse me, last sentence:

he's been quite clear that he thinks the burning is protected.
2.9.2006 12:43am
Kovarsky (mail):
Omar,

Do you seriously believe that any of the modern constitutional jurisprudence of flag burning has anything to do with an analogy to a (ex) human being's status as "dead?"
2.9.2006 12:47am
Omar Bradley (mail):
Kovarsky,

Johnson wasn't prosecuted because he opposed Reagan. He was prosecuted because he burned the flag. He could have burned the flag because he liked Reagan and he still could have been prosecuted.

It's not me who links flag burning with cross burning. It's Thomas. He calls the flag sacred. He explicitly links it with cross burning. He cites Rehnquist's dissent.

Why would he do all that if agreed with Brennan's opinion? It's reasonable to conclude that Thomas agreed with Rehnquist's dissent.

Intimidation has an expressive component. When Thomas says there's no expressve component. He doesn't mean there's no expressive component per se, he means there's no expressive component that implicates the 1st amendment. I don't know if I'd go that far and hold that flag burning is never protected. I don't think Thomas would either. If someone burns a cross in their basement or in their backyard out of view of others or as part of some movie or play, I don't think he'd say that that wasa criminal act. Likewise, if you burn a flag in your backyard I wouldn't vote to convict. But a state can set rulse regarding its use.

I also think the "juris privati" somewhat applies and that by virtue of being the flag it has an inherent public character to it that grants the govt the ability to regulate to a reasonable degree. The American flag can never be simply private. Even if you buy it at a store, it still has a public quality that separates it from say, a flag from another country or a flag that has a Steelers logo or some generic flag. I see little difference between Johnson and O'Brien.

And don't tell me that it's ok to ban a flag from being used commercially but it's illegal to prevent it frmo being burned. Using a flag commerically also expresses a message. I don't really see a distinction. If Halter is good law, Johnson is bad law.

Simply, whatever expressive component is involved in flag burning in my view, it doesn't implicate the 1st amendment. If TX passed a law that Flag Burning is illegal only when it criticizes the govt, then you'd have a 1st amendment issue because in that case it's expressly clear that one's beliefs are the reason for the statute. This TX law had no relationship with one's beliefs.
2.9.2006 12:54am
Noah Klein (mail):
Omar,

"The TX statute didn't proscribe flag burning in toto. IE, the Boy Scouts could still burn the flag in their cermonies under the TX law."

This statement makes your whole argument ridiculous. If they proscribe flag burning in toto, then the flag burning that they do proscribe is an attempt to limit someone's speech.

Your funeral argument is also wrong. You are right that the ceremony is like a funeral, but that does not change the fact that it is the burning of a flag.

Finally, you are wrong on the Texas statute. The Texas statute did not prohibit the burning of a flag. It prohibited the "descration of a venerated object."

You may be right that some objects in society should not be held up to be descrated, but if you are trying to say that any burning of a flag was and should constitutionally proscribed, you are just plain wrong.

Noah
2.9.2006 12:57am
Kovarsky (mail):
Omar,

The texas statute prohibited the "desecration of a venerated object."

The virginia speech prohibited burning of a cross in order to intimidate.

Thomas's entire rationale is that the plain terms of the virginia statute assure that prosecutions are limited to nonexpressive conduct. On the other hand, I think its pretty clear that "desecrating of venerated objects" defines a set that includes stuff that conveys messages.

If you don't agree with that, then it seems sort of pointless to keep talking to eachother, so we should probably stop. I do not appreciate your attempt to misrepresent Thomas in Black.
2.9.2006 1:10am
Omar Bradley (mail):
Kovarsky,

He cite's Rehnquist's dissent in other places as well.

"In holding [the ban on cross burning with intent to intimidate] unconstitutional, the Court ignores Justice Holmes' familiar aphorism that 'a page of history is worth a volume of logic.' " Texas v. Johnson, supra, at 421 (Rehnquist, C. J., dissenting) (quoting New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921)).

Now, Thomas opens his dissent with the EXACT SAME quote that Rehnquist used to open his dissent in Johnson. He prefeaced it by explicitly coupling the flag and the cross. He called the flag sacred.

Given that, I'd say the burden is on you to show that Thomas would say the burning is protected. I think it's clear he wouldn't. Burning a cross isn't protected. he explcitly links it with burning a flag. Ergo, burning a flag isn't protected. I don't think it's a coincidence that Scalia didn't join him in that dissent, and that Thomas didn't join Scalia's dissent part 3 where he says that Black's conviction should be overturned because it was possible that he burned the cross without an intent to intimidate.

In the end, we simply disagree. We both agree that burning a flag invovles expressive conduct. I don't think the first amendment protects that expressive conduct(the burning, not the message behind it), you do. The 1st amendment does protect expression, but it does not protect all forms of expression. I think you misread my earlier comment. The 1st amendment does protect expression in the abstract, but it does not protect all forms or instances of expression in practice. That's what I meant to say and I think all 9 Justices would agree with that.

It'd be interesting to see where Thomas would come down on say a Nazi march in Skokie or Brandenburg or something like that that also had an intent to intimidate. In the end, I think he let his personal views affect his opinion somewhat.

Let's say someone burns a cross on the highway without an intent to intimidate and he's convicted. Would you give him 1st amendment proection since there was no intent to intimidate?
2.9.2006 1:10am
Noah Klein (mail):
Omar,

I know you didn't address your last question to me, but I am going to answer. Yes.

Thomas's opinion was only that the intimidation factor in cross burning that be legislated against, not the act of cross burning.

"Scalia's dissent part 3 where he says that Black's conviction should be overturned because it was possible that he burned the cross without an intent to intimidate."

Scalia disagrees with Thomas that the intent was to intimidate. This does not mean that Thomas, like Scalia, does not believe that the symbolic speech in cross burning or flag burning is not protected speech. They only disagree on the intent of the act and thus Thomas found differently than Scalia.

Noah
2.9.2006 1:19am
Omar Bradley (mail):
Kovarsky,

I'm not misrepresenting anything. You're the one who says that if Virginia simply passed a law proscribing cross burning, irregardless of one's intent to intimidate or not, that Thomas would invalidate it. I think it's clear that he wouldn't. Cross Burning doesn't merit 1st amendment proection is how I read his opinion. The intent or expression is irrelevant.

There are no circumstances under which cross burning is protected is what he's saying. At least that's how I take it,

As for the scared object, Thomas used that language and it's interesting that he takes it direct from the TX law. I don't think it's a coincidence.

Noah,

I understand your view but it when it comes to the 1st amendment I'll go with Hugo Black over you, no offense.

It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense.(Street v NY, Black dissenting)
2.9.2006 1:22am
Omar Bradley (mail):
Noah,

Per Thomas, The act itself is intimidating. There can be no other purpose but to intimidate. Cross Burning can be legislated against, regardless of intent to intimidate because there is no expressive aspect to it that merits 1st amendment proection.
2.9.2006 1:25am
Noah Klein (mail):
Omar,

Black is dissenting there and while you may take Hugo Black, I'm going to take the Supreme Court, which has said that an attempt to outlaw the descration of a flag is unconstitutional.

I don't see how you have any argument anymore. You are saying that it is the act that the state outlawed. This is completely false on its face and even if it were true then the proper disposal of a flag, as laid out by the U.S. military, would be illegal too. This is not what was happening. The state and other states wanted to prevent the descration of a symbol. A noble goal, but in the end this country and its constitution have made it clear that no symbol is above reproach and every symbol can be descrated. I would agree with you that it is morally wrong, but the right to free speech doesn't allow us to make such a determination. Remember, the quote that so greatly expresses this principle, "I will defend to the death your right to say something that I would spend the rest of my life opposing."

Noah
2.9.2006 1:32am
Kovarsky (mail):
Omar,

You are still completely misstating Thomas's point. He isn't saying that cross burning can be legislated against without respect to intimidate. In fact he takes great pains to say the opposite. At this point I can only hope people read the excerpts, because you stubbornly refuse to accept what they quite clearly say.

He says threats are not speech. He says a statute that punishes cross burning with intent to threaten are therefore not speech. He makes it very very very very clear about 8 times, as I've excerpted any number of times above, that the fact that it is a threat is what makes it "conduct," and not speech. Why do you keep insisting that he does not consider nonthreating crossburning to be speech?

Ok, I'm done. Noah, save your breath.
2.9.2006 1:52am
Omar Bradley (mail):
Noah,

You can say whatever you want about the flag. I'd uphold that too. But saying something and setting something on fire are two different things.

And you can go with the Supreme Court, but it's the same Court that's decided that blacks aren't citizens, that segregation is constitutional, that there's a "right to contract", that the New Deal is unconstitutional, that there's a "right to abortion", that gay sex is illegal, etc...

If you want to believe in the infallibility of the SCOTUS you're free to do so, I base my views on my own opinonis, not blindly following 5 unelected judges, including 3 that openly admitted that the don't care about the Constitution and that they would invalidate the death penalty based on purely personal and moral views. You stick with Harry "Roe" Blackmun and Bill "I don't care what the Constitution says" Brennan, I'll go with the Constitution.

As mentioned a few paragraphs earlier, public desecration of the American flag during the Civil War was viewed as treason. It's quite a stretch to believe that Congress took steps to amend the Constitution to protect "expressive conduct" a few short years after having sanctioned a policy to punish it with death. The Republican Congress that framed the Fourteenth Amendment was essentially the same one that had supported President Lincoln's prosecution of the war.

Like I said, it's no big deal.

http://tempknak.home.att.net/FlagBurning.html
2.9.2006 2:00am
Omar Bradley (mail):
Karnovsky,

We seem to have a fundamental disagreement about Thomas' views. You think there are cases where he thinks cross burning would be considered protected speech. I don't. Unless Justice Thomas posts here, we'll never know.

I see you haven't really addressed his multiple cites of Rehnquist's dissent in Johnson. Your silence speaks volumes.
2.9.2006 2:04am
Noah Klein (mail):
Omar,

Firstly, your maligning Supreme Court Justices is completely ridiculous and does not further the debate. Please stop. I have not maligned any justice even though I vigorously disagreed with their rulings. Every Justice takes an oath to uphold the Constitution and thus I believe they all believe in it. They can be wrong and many in the past have been (Taney, the Plessy Court and so on), but that does not mean they do not respect the Constitution.

Secondly, I do not have a blind faith in the SCOTUS. I have laid my arguments and you have still failed to defeat them, because you have first failed to confront the true language of the Texas statute and you have failed to show the difference between the military's practice and Johnson's action. I appealed to the Supreme Court, because as a retort to me, you said "I understand your view but it when it comes to the 1st amendment I'll go with Hugo Black over you, no offense." You appealed to an authority and to respond I appealed to a higher authority.

Finally, symbolic speech is speech. There is no way you can say that burning a flag is not symbolic speech. Therefore, you would have to show that it is the act of burning a flag that is illegal and not the descration of it. This was the reason I brought the military's policy on disposing a flag, because if that is legal, then the burning of a flag to descrate it must be legal.

Noah
2.9.2006 2:26am
Public_Defender:
Omar writes:

If you want to believe in the infallibility of the SCOTUS you're free to do so, I base my views on my own opinonis, not blindly following 5 unelected judges, including 3 that openly admitted that the don't care about the Constitution and that they would invalidate the death penalty based on purely personal and moral views.
I look forward to specific quotations from three justices saying that they didn't care about the Constitution and that their death penalty decisions were based solely on personal opinion.
2.9.2006 8:29am
sbw (mail) (www):
So, ladies and gentlemen, what is the difference between a flag and a representation of a flag. Our newspaper has published a representation in the upper right corner for years. Under a flag amendment would it be illegal to recycle the newspaper's front page or to kindle a fire with it?

Would it be illegal to do the same with a representation that had one corner of one star missing?

What is the difference between a representation and a representation of a representation? What is the difference between a symbol and the real thing?

I submit that any proposed amendment would be vague, arbitrary, and subject to ex post facto interpretation -- in other words, bad law.
2.9.2006 11:33am
dweeb:
Distinctions between nations and religions, domestic and worldwide control, printed works and "performance" expression, are all trivial. What REALLY separates flag burning and the cartoons is whose ox is being gored, and is that ox owner in the majority. People who hold the flag sacred outnumber people who hold Mohammed sacred in this country. To support an FBA and not censorship of the cartoons is essentially a ban on expressing unpopular viewpoints. It's peer pressure made into law - Be cool or go to jail.
2.9.2006 12:05pm
Kovarsky (mail):
Omar,

This is stupid. I did address your analogy, in my 12:41 am post. I'll repeat it one last time for reasons that I can't fathom:

In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred, see Texas v. Johnson, 491 U.S. 397, 422—429 (1989) (Rehnquist, C. J., dissenting) (describing the unique position of the American flag in our Nation's 200 years of history), and the profane. I believe that cross burning is the paradigmatic example of the latter.

I said:

Yes, he couples them together, but I think the idea that he means to imply that statutes prohibiting the burning of both would be equally constitutional to be beyond untenable.


In the face of the repeated citation of Thomas's opinion where he SAYS he would hold non-intimidating cross burning to fall within the meaning of first amendment speech, you CONTINUE to resort to this argument that Thomas cites Rehnquist's disesnt Johnson for the proposition that history tells you a lot. Citing a dissent for one of its propositions, particularly one as devoid of legal operation as that one, does not amount to adopting wholesame the dissent he's citing from. I might be inclined to give it the benefit of the doubt and consider your analogy if you were not repeatedly asking me to compare it to the express words of thomas's opinion, which point 180 degrees in the opposite direction.

please stop trying to call this a difference of opinion. and until you let loose with that "unelected justices" thing as if that makes the viability of your constiutional interpretation greater by measure, i didn't realize i was dealing with one of those. if i had i would have terminated this conversation much earlier.
2.9.2006 1:38pm
Omar Bradley (mail):
Noah,

What is this "failed to defeat them" machismo? I never set out to defeat them or have you change your mind. I could just as easily say that you have failed to defeat my position and caused me to chnage my mind.

The fact that it's symbolic is irrelevant to me. The 1st amendment in my view doesn't protect ALL symbolic speech. The symbolic speech in O'Brien wasn't protected. And Justice Black's opinions in Tinker and Street(among others) make clear in my view that there's no absolute protection. In any event, the case is 15 yrs old. I don't really care about it and if you want to go burn the flag, be my guest. If you want to feel good about yourslef for "defeating" me, go ahead. I still think the case was wrongly decided and you haven't changed my mind one iota.

PD,

As for the death penalty, just go read any of Brennan and Marshall's opinions where they go on about "human dignity", "moral principle", "morality", "morally unacceptable" and a plethora of other "feelings" arguments. Blackmun joined them in Callins vs collins where he said he'd "no longer tinker with the machinery of death". Quite the statement from the author of Roe.

How would you feel if Scalia wrote a majority giving a fetus personhood under the 14th amendment because of "human dignity" and "moral principle"? Even most liberals will rightly criticize Brennan and Marshall's 8th amendment jurisprudence.
2.9.2006 3:45pm
jgshapiro (mail):
You can say whatever you want about the flag. I'd uphold that too. But saying something and setting something on fire are two different things.
They may be two different things in some contexts, but not in a legal context when the prohibition on burning is aimed at the message and not the burning. The difference between a ban on expressive conduct and a ban on conduct is in large part whether the ban on the conduct is a total ban on the conduct, or simply a ban on the conduct when it is engaged in to express a particular message.

If Congress bans the burning of canvas and nylon, and that has the effect of banning the burning of most flags (because that's what most flags are made of), then there is no first amendment issue. The effect of the ban has an incidental impact on burning flags, but the point of the statute is to prevent burning of any nylon or canvas object, regardless of why you want to burn them or what the object is.

But when Congress bans only the "desecration" of the flag — that is, bans the destrucition of any flag only when it is destroyed or defiled to send a message that the majority of Congress does not like, it is not really banning the conduct at all, it is banning the message sent by the conduct. (This is especially true when the "object" being burned or desecrated is not really an object at all in the classic sense, but a symbol. At most, it is intangible property.)

That is squarely within the scope of the first amendment, which is intended to prevent Congress (and now the states) from taking certain topics, messages or viewpoints off the table, even when they are (arguably) treasonous. Post-Cohen, the First Amendment also restricts even the degree to which the government can restrict the manner a message is conveyed. Johnson and its progeny are thus consistent with the intent and historical interpretation of the First Amendment.

It is my recollection that Congress has actually speficied burning as the *preferred* means of disposing of flags that are destroyed in rainstorms and otherwise ripped to pieces through no fault of the owner. This belies the idea that it was burning that was being banned, and not the message that a desecrator intended to send by burning.
2.9.2006 4:21pm
jgshapiro (mail):
Omar

Texas v Johnson was not up there with say Brown or McCulloch v Maryland as some landmark decision.

I guess that depends on what you describe as a landmark" decision, but this statement strikes me as absurd.

The decision itself lead the papers in probably every newspaper in the country when it was handed down. Congress has spent years trying to pass a constitutional amendment to essentially overturn it by creating an express exception to the First Amendment. It is one of maybe 100 constitutional decisions that all lawyers, and many non-lawyers, can identify by name. I would venture to guess that more people have heard of Johnson v. Texas or know if its holding, than have heard of McCullough, or can remember its holding. So, if you describe "landmark" as "high profile", which is one possible definition, it easily meets the test.

Moreover, the substance of the decision -- that no symbol in the U.S. is above criticism, not even the flag -- is certainly a powerful statement in First Amendment law. Indeed, by arguing that it was an aberration from past statements on the subject by your hero, Hugo "Korematsu" Black, and others, you acknowledge that it significantly changed the course of constitutional law on the subject, which is the other possible definition of the word "landmark."

What other definitions are there?
2.9.2006 4:47pm
Kovarsky (mail):
Omar,

As a matter of descriptive fact, you will not find many liberals taking issue with Brennan's 8th Amendment jurisprudence.

And you continue to betray an astonishing inability to understand the first amendment. In O'brien the point was not that the symbolic speech was not protected, it was that the functional attributes of draft card burning were the target of the regulation (the regulation didn't want people destroying copies of their draft card because it made a variety of tracking measures more difficult). That is of course a completely bogus characterization of the law's intent, but it's the one the court seized upon to uphold the law because it had to say precisely THE OPPOSITE OF WHAT YOU KEEP SAYING - the law has to target conduct, not symbolic expression.
2.9.2006 4:47pm
Noah Klein (mail):
Omar,

First, I have never said I want to ban a flag. In fact, I have said consistently that I think such protest is both immoral and stupid, but I think it be legislated against.

Second, whether we convince each other is separate issue. The question of convincing one or the other is wholly different than defeating or countering a person's arguments. I'm sure you been in a debate class and thus you would know this. I can hold onto to my beliefs and make a bad argument that is defeated in a debate. Thus I think I have defeated your arguments, but I think JGShapiro does a better job. You have failed to address the fact that the Texas statute did not prevent the burning of the flag, but it prohibited the "desecration" of the flag. Thus while it prohibited the conduct of "desecrating" the flag, that conduct has a specific message which the law was trying to prevent. The fact of the matter is that the "desecration" of the flag is symbolic speech. Symbolic speech that you and I might find disgusting (like Muslims find the depiction of Muhammed disgusting), but speech nonetheless and since it does not hurt or threaten someone when being made it cannot be legislated against.

Noah
2.9.2006 4:48pm
Edward A. Hoffman (mail):
Eugene,

Your premise that the people who oppose publishing the cartoons in the media have no problem with copying and distributing them presumes that the same people are taking both of these positions. It is quite possible that most of the people picketing the Inquirer are not the same ones who are passing the cartoons around privatelyand that they condemn the people who are doing so.

That said, I agree with you completely about selectively banning certain types of speech. I have always considered the idea of banning flag-burning un-American, since (among many other reasons) such a law would discriminate on the basis of viewpoint. I construe freedom of speech quite liberally, which I firmly believe is how the framers intended it to be construed.
2.9.2006 5:33pm
Public_Defender:
Omar,

Speaking of "morals" is not the same as (to use your words) "openly admit[ting] that the (sic) don't care about the Constitution and that they would invalidate the death penalty based on purely personal and moral views. . . ."

And Scalia does speak of "morals" in his decisions. See, for example, Lucas v. S.C. Coastal Council, 505 U.S. 1003, in which Scalia wrote that property rights could be restricted to protect "morals," but that he did not think protecting the environment fit that definition.

In your initial post, you said three Justices "openly admitted" that they didn't "care about the constitution," and that they made decision based "purely personal" views. Now you admit you can only show that they cited "morals" in a few opinions.

That's a HUGE backtrack on your part.
2.10.2006 7:30am