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Flags and Speech:

Some responses to my post about the flag desecration prosecution prompt me to repost (with some edits) something I wrote about in July 2004.

I've never bought some conservatives' harping on the supposed ridiculousness of the Supreme Court's flagburning decision. Sure, flagburning isn't literally opening your mouth or talking (one meaning of "speech") or using a machine to print letters on paper ("press"). But neither is handwriting a letter; neither is waving a non-printed sign.

Most relevant here, neither is waving a flag. I suspect that most people would agree that flag waving is constitutionally protected. The Supreme Court basically held that in 1931, in one of the Court's first three decisions protecting free expression (Stromberg v. California). Would a law banning the waving of the Confederate flag really be obviously fine, because flagwaving isn't literally "speech" or "press"?

I suppose some people might argue that such a law would be constitutional for that reason. But I suspect that most people would disagree, and conclude that waving a flag really is a form of speech, just in a symbolic language. Waving the flag is like wearing a black armband, applauding, saluting, wearing a satirical mask, or wearing a cross or star of David (which is protected both as religious practice and as speech).

It seems to me that flagburning is just as much symbolic speech as is flagwaving. One can argue that it's not very valuable speech, or that there's a specially compelling interest in banning it, as Chief Justice Rehnquist did in Texas v. Johnson. But the Court is quite right to treat it as speech.

Of course, all this deals with restrictions on flagburning on the grounds that it involves a flag; such restrictions necessarily focus on the message that the flagburning (or the attachment of words to a flag, or flying the flag upside down) sends -- they'd be senseless if they weren't focused on the message. A law that bans the burning of all objects in certain public places, perhaps on the grounds that they are fire hazards, would be constitutional. But a ban on the burning just of the American flag, or even of flags generally, would be an attempt to suppress communication, just as a ban on handwritten picket signs, or a ban on public speeches that are derogatory towards America (or for that matter on speeches that are derogatory towards any nation).

Eric James Stone (mail) (www):
As someone who commented on the previous thread that I felt Texas v. Johnson was incorrectly decided "...because burning a flag is more conduct than speech...," I suppose this post is in part directed at me.

Undoubtedly, any kind of conduct can be used to convey a message. In my opinion, though, types of conduct that are primarily used to convey a message are more deserving of First Amendment protection than other types of conduct.

To illustrate, here are three types of conduct:
1. Posting comments on a blog
2. Dancing
3. Defecating

For #1, it's clear that the primary purpose of posting comments on a blog is to convey a message. Therefore, I would be extremely leery of government regulation of that conduct.

For #3, I think most people would generally not think of defecation as a method of conveying a message, even though it is possible to do so. I wouldn't have much problem with the government completely banning defecation as a method of conveying a message, except in the unlikely event that defecation was a person's primary method of communication.

For me, #2 lies somewhere in between, as does burning stuff.
9.14.2006 7:52pm
Syd (mail):
I was just thinking:

(1) Are Englishmen upset if someone flies the Union Jack upside-down in protest? Or Frenchmen if some flies the tricolor upside-down.

(2) How could they tell?
9.14.2006 7:53pm
Matt Tievsky (mail):
Eric James Stone,

I agree with pretty much everything you said. But that doesn't contradict the following two propositions--

1)Defecating can have the intended effect of conveying a message.
2)even so, there's a strong case for restricting defecation generally, for reasons that have nothing to do with its communicative content--hence the O'Brien analysis.

I do not think #2 holds for the sorts of flag-burning laws we've been discussing.

I'd argue that all "speech" is "symbolic conduct." Language itself consists of symbols. The only reason we draw the speech/conduct distinction at all is that some acts (e.g., producing sounds with the vocal cords, or scribbling symbols on paper) are primarily intended to communicate a message and are the most effective at doing so.
9.14.2006 8:29pm
Aukahe:
Syd,

The Union Flag has Saint Patrick's Cross on the bottom half of Saint Andrew's Cross on the hoist edge and the top half on the fly.
9.14.2006 8:30pm
Eric Scharf (mail) (www):
Given that the printing press and widespread literacy are relatively recent developments, one could argue that flag-waving (and viewing) is the oldest form of public speech.

"You there! Who is your liege lord?"
"Him with the blue chicken on his drapes."
"Death to the blue chicken! Long live the purple rose!"
9.14.2006 8:32pm
amnyc (mail) (www):

For #3, I think most people would generally not think of defecation as a method of conveying a message, even though it is possible to do so. I wouldn't have much problem with the government completely banning defecation as a method of conveying a message, except in the unlikely event that defecation was a person's primary method of communication.


Eric:

In this link, check out item #2 under "Great Art!"

Based on your analysis above, should it be legal for the government to censor his art project? Should the artist be subject to criminal penalties?
9.14.2006 8:33pm
jim:
"I wouldn't have much problem with the government completely banning defecation as a method of conveying a message"

"#2 lies somewhere in between, as does burning stuff."

I don't think anyone is arguing that the government can't "completely ban" "burning stuff" "as a method of conveying a message" in certain settings.

The problem is that the government has attempted to ban burning based on the content of the speech that act of burning conveys. There isn't a good reason to specifically ban burning a flag in order to desecrate it that is cotent-neutral.
9.14.2006 8:48pm
Ron Hardin (mail) (www):
Flag burning is our canary in the free speech coal mine. It gets the right people so mad that its being permitted proves something.

Sociologically, the right people want to own the flag, when in fact it belongs to everybody, snake oil salesmen and parading organizations alike.

The worst desecration that you see today isn't burning but politicians standing next to flags. That's the price of freedom, right there.

The official use of flags ought to be identifying post offices, and marking an embassy in a foreign land where you can go to find your feet with normal people for a change.
9.14.2006 9:16pm
Traveler:
A big part of the outrage over Texas v. Johnson is outrage over the court's constitutional intervention in a controversial issue on which a tacit compromise had been reached between those who believe it's an appropriate form of discourse ("burners") and those who believe it's outrageous behavior ("patriots"): keep flag-burnings rare and low-key, and in exchange, there won't be draconian punishment for doing so.

This seems to be the rare case where the compromise has persisted even after the court overturned its legal/constitutional underpinning: the flag-burning amendment has remained so close to passage that the burners continue to use discretion and rarely burn flags, and patriots flog the flag issue less hard than on other controversial issues such as abortion.
9.14.2006 9:22pm
Justin (mail):
Traveler, I prefer "haters of freedom" and "lovers of freedom" if we're going to use normative words to try and win an argument where logic fails to suffice.
9.14.2006 9:26pm
sbw (mail) (www):
Why view it this way at all? How about the impossibility of deciding for purposes of prosecution "What is the American Flag?"

If one point of one star is missing, is it a flag? If it is printed on one side of newsprint in a newspaper, is it a representation or a flag? If it is a flag, can you recycle it? The problem is that the newsprint rendition is a representation of a representation.

What's the difference? Give it up and go home.
9.14.2006 9:43pm
Archon (mail):
I think the whole flag burning argument is more or less about exploring the outer limits of the First Amendment. There was a time, when Chaplinsky was good law, where lewd, profane, and vulgar speech was unprotected. Just like today child pornography, incitement, fighting words, and obscenity is not protected speech.

There is nothing unamerican about suggesting that some types of speech should not enjoy the protections of the First Amendment. In fact, I think it is good that we have this debate from time to time.

Don't get me wrong. I tend to believe society should protect almost every type of speech. I just wish the Supreme Court would establish a more bright line rule about what speech is protected and unprotected. I believe this would require overruling Chaplinsky and Black.
9.14.2006 9:45pm
Bruce Wilder (www):
Burning the flag is the prescribed method of disposing of a soiled or damaged flag, which cannot be cleaned or repaired.

Hence the symbolism of burning a flag in protest of actions dishonorable to the country.

All the anti-flag burning rules I have seen are clearly aimed at suppressing the protest.
9.14.2006 9:52pm
Archon (mail):
Bruce -

If it is constitutional to punish a person for burning a cross with the intent to intimdate, why shouldn't the same apply to burning a flag?
9.14.2006 9:57pm
ruidh (www):
Well, that's the problem, there are no bright lines rules. There are, at best, balancing tests where judges have to weigh various concerns.

I've always viewed attempts to ban "desecrating" the flag as ill conceived. For one thing, the flag is not sacred. It is a symbol for a country, not for a god. The fact that we instruct people to dispose of worn flags by burning exposes the problem here. It is the message of disrespect for the country that people object to, not the burning. It is the meanning — the speech, not the conduct which angers people.
9.14.2006 9:58pm
Archon (mail):
Ruidh -

Just to play devil's advocate...

I think you would get a different answer about the status of the flag from a vast majority of Americans. Especially old Americans that fought in World War 2 and younger Americans that have fought in the War on Terror. Many people do regard the flag as a sacred symbol of the country for which they love.

So, assuming that the vast majority of Americans have a high regard for the flag, does society have the right to carve out a "flag exception" to the First Amendment? Remember, the Supreme Court has already done it for cross burning.
9.14.2006 10:06pm
Eugene Volokh (www):
Archon: Flagburnings are rarely done with the intent to intimidate in the sense of threatening harm to a particular person. Crossburnings often are (though crossburnings that are not done with such an intent are generally constitutionally protected, see Virginia v. Black).
9.14.2006 10:12pm
Archon (mail):
Eugene -

But say for the sake of argument, you have an anarchist that is protesting a gathering of VFW vets. At this protest he denounces them as fascists and burns a flag for which he later testifies he did to intimidate them. Many vets also testify that they were indeed intimidated by this action.

Applying Black to this fact pattern, do you think a court could constitutionally punish the anarchist?
9.14.2006 10:16pm
Steve:
This seems to be the rare case where the compromise has persisted even after the court overturned its legal/constitutional underpinning: the flag-burning amendment has remained so close to passage that the burners continue to use discretion and rarely burn flags, and patriots flog the flag issue less hard than on other controversial issues such as abortion.

This "tacit compromise" argument seems silly on both accounts. It seems very unlikely that potential flag-burners refrain from doing so because they want to preserve the right to burn flags for others; it's not like there's some secret society that coordinates flag burnings. And as for the flag issue being "flogged less hard," a flag-burning amendment was introduced in Congress just a few short months ago, and this wasn't the first time. I sure don't remember an abortion amendment getting a floor vote in Congress.
9.14.2006 10:49pm
Porkchop (mail):
I want to meet the anarchist flagburner who can intimidate a group of VFW vets. :-D
9.14.2006 10:59pm
jgshapiro (mail):
Eric:

The defecation analogy doesn't work for two reasons.

First, flag burning is only prohibited when it is "desecration"; that is, when it is engaged in to show disrespect toward the flag or the nation. It is actually the prescribed method to dispose of a damaged flag to show respect for the flag (See United States Code, Title 4, Chapter 1, §8(k)). Why would you prohibit conduct only when it is engaged in to express a particular message if it was the conduct you were after and not the message? If public defecation was prohibited only when it was used to express disfavor towards a topic, but allowed - or even recommended by law - to express favor towards the same or other topics, the analogy would hold.

Second, the flag is a symbol, not tangible property. It makes no sense to regulate the use of a symbol unless it is the message you are after (excluding regulation of misuse of trademarked symbols by non-trademark holders). Of course, you can regulate the use of a particular representation of a symbol: you cannot burn my copy of the flag. But you are free to burn your own. On the other hand, defecation is not a symbol. It is the act of generating feces. Feces are tangible, not intangible. If the government prohibited destruction of pictures of feces, then the analogy would hold.

The dancing analogy doesn't hold for the same reasons. Dancing is not prohibited only when the dancer is expressing a particular message. Dancing is not a symbol for anything. If pictures of dancers could not be "desecrated," the analogy would hold.
9.14.2006 11:27pm
jgshapiro (mail):
Traveler:

Do you really believe that the reason more people do not burn the flag is because of the "compromise" that has persisted despite Texas v. Johnson? Is there a coherent group of "burners" who have consciously decided to observe this compromise?

I don't follow your argument. How would a constitutional amendment prohibiting flag burning affect someone who previously burned the flag, unles it also eliminated the ex post facto clause of the Constitution? And if it didn't allow retroactive prosecution, why would someone who was inclined to burn the flag refrain from doing so to prevent the amendment from passing? So they could (occasionally) burn the flag in the future?

Flag burners just want attention. They engage in profane conduct to piss people off so people will pay attention to their grievances. (No one burns a flag in private.) The amendment keeps failing because at least 34 senators aren't willing to give them the attention they crave, especially at the cost of altering the Constitution.
9.14.2006 11:40pm
gvibes (mail):
The "expressive conduct" cases that really puzzle me are the cases holding that panhandling is protected by the First Amendment. My law review write-on was on this issue, and I thought the cases holding as much were so ridiculous that I could not complete the note (not that I much wanted to).
9.14.2006 11:44pm
Anderson (mail) (www):
The "expressive conduct" cases that really puzzle me are the cases holding that panhandling is protected by the First Amendment.

Why? My congressman can ask me for money, but not the bum down the street?

Is my proposing a tryst to a complete stranger protected by the 1st Amendment? Why not? (Assuming that fornication's not illegal in that state.)
9.14.2006 11:51pm
Steve:
Is my proposing a tryst to a complete stranger protected by the 1st Amendment?

Perhaps, but it's worth noting that her right to decline is protected by the 2nd. :)
9.15.2006 2:17am
Randy R. (mail):
The flag is merely a piece of cloth, and it is also a symbol. If we ban the burning of it because it is a piece of cloth, then no clothes could ever be burned. If we ban burning because it is a symbol, where do we stop? Perhaps we could make is crime to burn a rainbow flag, since that is a symbol of resistance and freedom to the gay community.

Anyone who says burning the flag should be banned is saying that it should be banned because it is a symbol. But it if precisely because it is a symbol that some seek to burn it, or otherwise deface it, and for that reason it should be protected.

The First Amendment doesn't have any exceptions for symbols, no matter how highly regarded. This is a perfect example of literalism in reading the US Constitution. Should anyone find an exception, they are reading something into the constitutiont that simply isn't there.

They should not complain when the Supreme Court finds a right to gay sex in the constitution.
9.15.2006 2:31am
lucia (mail) (www):
My husband and I own a flag and fly it precisely to express a view. Admittedly, flag flying isn't a way to convey tiny nuances, but people do get the gist, and even agree more or less on the relative meanings of flag waving vs. non-flag waving vs. flag burning.

Heck, wrecently Latin American immigrants who were rallying for immigration reform. Many carried American flags. I heard some people object to the flag waving on the basis that some groups of people somehow don't have the right to express pride in being an American!

So yes, messages are communicated by waving flags! And if messages are communicated by waving flags, messages are also communicated by burning them. They are just different messages. Whenever I hear objections to flag waving or burning, it always seems to be related to the content of the message.
9.15.2006 3:53am
logicnazi (mail) (www):
As a practical matter I think any anti flag burning ammendment or supreme court deciscion would do a great deal to increase the amount of flag burning.

I mean I've never particularly understood this whole patriotism thing and have no particular respect for the flag (despite what people claim it doesn't represent freedom it represents the fact that we are a group of people who have gotten together to advance our interests over that of other groups...if you wanted to symbolize freedom you would wave the bill of rights) but so long as flag burning is legal I would never do it. It would antagonize many people, cause useless pain and suffering and send many unintended messages.

On the other hand if a flag burning ammendment was ever passed I would be out there the next day with a flag and matches. If this ammendment was passed then the flat would deserve to be burned.

The reason so few flags are burned is that there is no good reason. It just makes people hate you and hurts your credibility in almost any group without even giving the satisfaction of getting thrown in jail to prove you are being oppressed. On the other hand making it illegal would make for a very good reason to burn the flag, namely protesting the illegality of flag burning.
9.15.2006 5:36am
sksmith (mail):
logicnazi-
Sine crossburning is illegal, do you burn crosses for the same reason?

Steve
9.15.2006 10:30am
Houston Lawyer:
I think a better example would be setting off fireworks. This is generally done to express a sentiment, but is often made illegal even when there is no fire hazard. Why don't we have a constitutional right to possess and set off Black Cats.
9.15.2006 11:36am
strategichamlet (mail):
sksmith,

Did you read any of the other comments? Eugene earlier refuted the common notion that crossburning is illegal. Apparently it is only illegal when used to intimidate and is otherwise protected.
9.15.2006 11:40am
lucia (mail) (www):
Houston Lawyer,

Is the main reason for regulating fireworks the fire hazard? I thought it was excess noise and the possibility of physical injury.

1) Many are very noisy. Excess noise is often prohibitted by noise or nuisance ordinances.

2) Handling some fireworks can be dangerous. I know a man who was blinded screwing around with fireworks as a child. When I was a kid in El Salvador, I was burned by a stray firecracker that fell out of the sky. The injury was mild-- about what you might expect if you brushed someone's lit cigarette and backed aways quickly.

Of course, there is sometimes a firehazard as well. That just adds to the possible reasons to regulate fireworks.
9.15.2006 1:34pm
jvarisco (www):
It seems to me that while flag burning is in fact expressive, it's expressive in a very noxious way - toward the country itself. Which basically amounts to treason, which trumps freedom of speech. Burning a flag against this country in support of some other group (al Qaeda etc.) can pretty easily be understood as "adhering" to them.
9.15.2006 1:59pm
Falafalafocus (mail):
Professor Volokh,

I don't claim to be a constitutional law scholar (I did take a separate First Amendment class, but that hardly qualifies as having knowledge), but Texas v. Johnson and U.S. v. Eisenstadt always confounded me from a jurisprudential standpoint.

If we go back to those two cases fresh and look at the arguments made, I am at a loss to understand how the US Supreme Court reached the issue in either case that flag burning constituted "speech". Both cases seem to me to be about governments overstepping their powers. Eisenstadt is the easier case. There is no constitutional article or clause currently which seems to give Congress the power to criminalize flag burning. The Commerce Clause comes closest, but I don't think that even the most expansive reading of that clause would permit Congress to regulate the use of a product by a private citizen after purchase which does not even indirectly alter the markplace for that product. Simply put, the guy who burns a flag he bought is probably neither more nor less likely to buy a replacement flag than any other person and the act probably will not result in special harm that an ordinary fire would not cause.

Johnson is a little tougher, but I don't see the state police power here either. The state can only regulate if that regulation is reasonably related to the health, safety, morality, etc. of the people. I don't see what it is about a flag burning from which it is reasonable to believe that this particular kind of arson is any more dangerous to the health of the population. The closest argument is morality, but I just can't see how we can argue that flag burning is per se immoral. At best, it requires context make that judgment.

Because I don't see how the governments had the authority to ban flag burning based on the traditional powers of the state and federal government, I don't see why these cases should have been decided on free speech grounds.

I realize that this argument opens up the door to an amendment which would give such authority to Congress. Obviously, such an amendment, if passed, would avoid both my concern and free speech issues anyway, however. Call me a radical if you will, but what am I missing here that makes this a speech issue, and not a government power issue?
9.15.2006 3:55pm
Unnamed Co-Conspirator:
Fire hazard as a justification for prohibiting flag buring? Well, if it's done in a way that creates a hazard for someone other than the flag burner, it probably is against the law for reason having nothing to do with the fact that it's a flag being burned. And if the only hazard is to the person burning the flag, the hazard shouldn't be considered a sufficient justification for a prohibition, because society almost certainly better off if the scumbag does light himself on fire.

Of course it's symbolic speech. But is it within the scope of the "freedom of speech" that the first amendment protects? Probably. But just calling it speech doesn't answer that question.
9.15.2006 3:57pm
Hawks (mail):
Even if flagburning were not considered "speech" under the First Amendment, it should be constitutionally protected as an unenumerated right under the Ninth Argument, subject to reasonable public health and safety regulations.
9.15.2006 3:59pm
Jay Myers:
I'm not sure which side I'd support in a debate over the first amendment protecting expressive acts but in the specific issue of flag burning protests the question is, or should be, moot. When flags are burned in protest it is inevitably in public amongst a throng of people. I have no trouble believing that governments have the authority to restrict such actions for public safety reasons just as they may restrict me from burning leaves in my back yard.
9.15.2006 4:08pm
Falafalafocus (mail):
Jay,

I'm not sure if you are responding to my concern or another poster's, but I have to humbly disagree in part. First off, such an argument would obviously not permit the federal government the authority to ban flag burning since the federal government does not (yet) have general police powers. As for the states, I don't quite understand state police powers to permit this expansive a reading either.

If the state can ban the act because it occurs in public, then it is again, merely a specific kind of arson and therefore there is no reason to specifically ban flag burning as opposed to setting your leaves on fire with a crowd of spectators watching. If however, the state wants to ban flag burning because it may incite a riot, then shouldn't the analysis have been similar to Chaplinsky (where the U.S. Supreme Court permitted restrictions on speech which called for either a lynching or a revolution [i don't remember which at this moment])? The fact that the court did not rule in this fashion tells me that there is not enough of a reasonable basis for the state to restrict on the fear of a possible fight breaking out. So where is the police power from which the state could regulate?
9.15.2006 4:20pm
Mark Field (mail):

It seems to me that while flag burning is in fact expressive, it's expressive in a very noxious way - toward the country itself. Which basically amounts to treason, which trumps freedom of speech. Burning a flag against this country in support of some other group (al Qaeda etc.) can pretty easily be understood as "adhering" to them.


"[T]he crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." Cramer v. US, 325 US 1, 29, 65 S.Ct. 918, 932 (1945).
9.15.2006 4:21pm
Unnamed Co-Conspirator:
The inkblot amendments don't do anything except confirm that the first eight amendments weren't intended, at least in 1787, to affect the power of the States', or the people acting through their State governments, to make laws for themselves through the usual means of doing so. If there's a constitional limitation on state prohibitions of flag-burning, it's in the First Amendment as applied to the states through the 14th. Incorporation - i.e., substantive due process -- might not work if you read the constitution without its historical context, but if you consider that the post civil war amendments were indeed intended to provide freedmen with substantive rights, it's not such a stretch. Note the absence of penumbras in the language of the first eight amendments or in the historical context. Incorporation without the imaginary penumbras isn't unreasonable.
9.15.2006 4:26pm
David M. Nieporent (www):
It seems to me that while flag burning is in fact expressive, it's expressive in a very noxious way - toward the country itself. Which basically amounts to treason, which trumps freedom of speech. Burning a flag against this country in support of some other group (al Qaeda etc.) can pretty easily be understood as "adhering" to them.
It can be, if "making up new definitions of words" counts as "understanding" them.

It does not "basically amount to treason" to express dislike or disgust towards, or even outright opposition to, the government, or "the country itself" for that matter.
9.15.2006 4:27pm
sksmith (mail):
Dude-

"Did you read any of the other comments? Eugene earlier refuted the common notion that crossburning is illegal. Apparently it is only illegal when..."

Did you read your own post?

Steve
9.15.2006 5:07pm
jvarisco (www):
Mark) The question would then be the intent of the flag burning, not the burning itself. And one could ban flag burning with the intent to cause harm - for example, I want to burn this flag to stimulate anti-government support in order that people feel sorry for Osama, we don't take anti-terrorism measures, and he is able (because of my efforts, at least in part) to strike again. I don't think this reasoning is all that convincing, but it does not have to be. It is after all having to get around jurisprudence that allows flag burning - I think a much stronger argument could be made on purely constitutional grounds. But it is plausible, and for quite a few legal decisions, that's all that matters.

David) From dictionary.com for adhere: "to be devoted in support or allegiance; be attached as a follower or upholder (usually fol. by to): to adhere to a party." What is the definitional problem? Burning a flag in support of al Qaeda fits that perfectly.
9.15.2006 5:22pm
jgshapiro (mail):
I think a better example would be setting off fireworks. This is generally done to express a sentiment, but is often made illegal even when there is no fire hazard

Fireworks are not a symbol, they are an object. You can burn pictures of fireworks or foam representations of them and no one would question your right to do so. You can't burn the real thing because of the safety hazard, both to the person setting them off and to innocent bystanders (not to mention the noise pollution).

Is there a safety hazard from burning a nylon or cloth flag that is different from burning anything else made of nylon or cloth? If not (and I seriously doubt it), what is the reason for allowing me to burn a nylon or cloth representation of the French flag, but not the U.S. flag? Why can I set my nylon 49ers jersey on fire when they go 4-12 again, but not a nylon flag?

There is no content regulation of fireworks either. No state has a law stating that you cannot set off an M80 to express derision for the nation, but you can set one off to express respect or celebration. Flag burning is only illegal when it is desecration, that is: when it is engaged in to express a lack of respect for the nation or the flag, and not when it is engaged in to express respect for the same.

Moreover, you could never have a purely content-neutral statute regulating flag burning, because the flag is an intangible item: a design of stripes and stars, that could be inscribed on anything. If you banned burning of all nylon, that would cover flags and be content-neutral as to nylon flags, but not prohibit burning of cloth or paper flags. If you ban destruction of the design itself, how do you ever dispose of a damaged flag? And what would be the non-message-related justification to ban the burning of a design?
9.15.2006 5:32pm
jgshapiro (mail):
Falafalafocus:

The state police power applies not only to health and safety regulations, but to morality-based regulations. When you use the term police power, it means the affirmative power to regulate anything that has not been specifically reserved to Congress and thereby prohibited to the states.

So absent the First Amendment, either the federal government has the power to regulate the flag, or the states do, or both. But it cannot be the case that neither the federal government under Article II nor the states under their police power have the power to regulate something unless that power has been circumscribed elsewhere in the Constitution.

In this case, the question is beside the point, since the Supreme Court ruled that the First Amendment prohibits both the federal government and the states (through the Fourteenth Amendment) from banning desecration of the flag.

Even if you doubt the scope of the police power to regulate morality, a state could nevertheless tie a regulaiton of flag burning to the police power by claiming it was trying to avoid the violence (or possible riot) likely to arise when someone desecrates the flag in public. Surely the prevention of a fistfight or a riot would constitute a regulation targeted toward preserving public safety and order.
9.15.2006 5:40pm
Mark Field (mail):

And one could ban flag burning with the intent to cause harm - for example, I want to burn this flag to stimulate anti-government support in order that people feel sorry for Osama, we don't take anti-terrorism measures, and he is able (because of my efforts, at least in part) to strike again.


The speech has to go beyond that. It has to constitute something akin to a speech act, and that act has to "give aid and comfort". For example, if Tokyo Rose broadcast surrender messages to US troops on behalf of the Japanese government, that might be treason. If she instead simply wrote a letter to the NY Times expressing the hope that Japan defeated the US and suggesting that we surrender while terms were good, that would not be. Your example falls into the latter category.
9.15.2006 5:50pm
Falafalafocus (mail):
jgshapiro,

While I fully accept that my concern is beside the point because the Court did, in fact, rule that this was protected speech, I simply cannot agree with your analysis that there is a police power here large enough to permit a state prohibition on flag burning.

As I wrote previously, if the state police powere invoked here is that of public safety because there may be a riot, then shouldn't the Court have ruled similar to how it did in Chaplinsky? In a nutshell, either the state is justified in believing that there may be a riot or it is not. If it is, then the act can be prohibited notwithstanding the fact that it would otherwise constitute speech. But if probably won't cause a riot, then we can't classify this as a safety police power and therefore the state can not ban flag burning even if no speech is invoked.

Think of it like this: can the state prohibit a person from wearing Nike's on a Tuesday? There is no constitutional right that I can find that permits me to wear Nike's as opposed to other shoes. Even if I argued some vague penumbra, we all know that this is at best, a very weak right which can be overcome if the state can cite a police power. So if the state can come up with a health, saftey, or morality basis, then I can't really complain about the state's shoe policy.

I look at flag burning the same way. Pretend that we do not know if flag burning constitutes speech. The question is whether there is a police power which can prohibit it. If the public safety argument is that this form of speech will create a riot, then we already have an exception to first amendment speech which incites a riot. As a result, even if the U.S. Supreme Court called this speech, shouldn't the U.S. Supreme Court then have stated that there was a compelling reason to prohibit it? In the alternative, if there is no real threat of riot (I think Johnson actually implies this by pointing out that someone properly buried the flag after the burning), then the public safety police power falls away and we should again ask: "under what police power can the state prohibit this activity?"

As mentioned before, (and much to your credit, you do not seem to be arguing) I can find no federal article or clause in the federal constitution permitting Congress from regulating this. So in the federal case, the issue seems even easier.

I therefore renew my question. Why are we so hung up on flag burning as a freedom of speech issue when it seems to be an issue of federal and state power?

If however, the state wants to ban flag burning because it may incite a riot, then shouldn't the analysis have been similar to Chaplinsky (where the U.S. Supreme Court permitted restrictions on speech which called for either a lynching or a revolution [i don't remember which at this moment])? The fact that the court did not rule in this fashion tells me that there is not enough of a reasonable basis for the state to restrict on the fear of a possible fight breaking out. So where is the police power from which the state could regulate?
9.15.2006 6:05pm
markm (mail):
Flagburning does definitely convey a message. As far as I'm concerned, the flagburner is saying, "I'm an America-hating idiot" in a most noticeable and clear way. Why would anyone want to take away such a good means for them to publicly identify themselves?

But say for the sake of argument, you have an anarchist that is protesting a gathering of VFW vets. At this protest he denounces them as fascists and burns a flag for which he later testifies he did to intimidate them. Many vets also testify that they were indeed intimidated by this action.

Applying Black to this fact pattern, do you think a court could constitutionally punish the anarchist?


Aside from the unlikelihood of any anarchist managing to intimidate a VFW meeting (short of carrying in a bomb with a deadman switch), the answer is yes - but this doesn't apply just to flag burning. It also applies to speech itself. Statements that are clearly intended to convey a direct and plausible threat to an identifiable person or persons are illegal (for instance, "tomorrow I'm coming back here with my gang and burning you alive.") Crossburning has a history of being used to convey just such a threat, so laws against it can be justified. But I fail to see anything about flagburning that conveys a threat.

(Off-topic, but if there's a state with no history at all of KKK or similar activities, would a state anticrossburning law be constitutional there?)
9.15.2006 6:40pm
jgshapiro (mail):
Falafalacious:

I think you may be missing my point. Think of it as two inquiries. First, does Congress have the power to pass a particular law? Second, does the Constitution otherwise prohibit it from passing that law? Those are separate inquiries: a question of affirmative governmental power, and a question of whether there is an individual right that constricts that power.

The states have the right to pass any law that, broadly speaking, seeks to maintain public safety and order. They also have the right to pass laws that are designed to prohibit acts that contravene public morality. This is the police power. Conceivably, the U.S. Constitution might restrict the ability of states to pass a law under their police power, such as in Article I, Section 10, or Article IV. But there is nothing in those provisions that would stop a state from passing a flag desecration law. So, absent the First Amendment, state governments have the power to pass flag desecration laws.

The federal government, at least arguably, has the power to protect a federal symbol. The flag is, after all, the symbol of the U.S. government and its values, not a state government or its values. I think federal power may be implicit in this case.

The problem, for advocates of flag-burning-bans is that the First Amendment creates an individual right that trumps both the federal power and (through the Fourteenth Amendment) the state police power.

Chaplinsky addresses the scope of the individual right under the First Amendment, not the government's power to pass such laws in the first place. Chaplinsky says that fighting words are not protected by the First Amendment, but later cases make clear that fighting words are a very narrow class of speech, that must be directed "at the person of the hearer," rather than at a group of people, or at the entire community or nation.

Think of it this way: if the First Amendment were repealed, but no other changes were made to the federal or state constitutions, both the federal and state governments would have the power to ban flag burning. Chaplinsky does not contradict this conclusion in any way, because it only addresses the scope of the First Amendment, not the scope of Congressional power under Article I or the scope of the police power under common law or state constitutions.
9.15.2006 9:16pm
TruthInAdvertising:
Thanks for addressing the Chaplinsky comments. Chaplinsky's scope has been greatly limited:

Chaplinsky Analysis

and in any case, the courts haven't adopted the viewpoint that the heckler's veto rules the day:

http://www.rbs2.com/heckler.htm#anchor111111
9.16.2006 12:22am
Ken Arromdee:
"[T]he crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy- making a speech critical of the government"

This seems to suggest that if you make a speech critical of the government (satisfying the second criterion) *and* do it with the intent to spread sympathies with the country's enemies (satisfying the first criterion), then you have indeed committed treason.

It has to constitute something akin to a speech act, and that act has to "give aid and comfort". For example, if Tokyo Rose ... wrote a letter to the NY Times expressing the hope that Japan defeated the US and suggesting that we surrender while terms were good, that would not be.

Why wouldn't it be?

The quote itself gives an example of "speech critical of the government" as providing aid and comfort. So logically, so should Tokyo Rose's newspaper letter. Unlike the example in the quote, the Tokyo Rose letter also passes the first test, so it's treason by this definition.

In fact, this sounds like flag burning done in sympathy with the enemy would be treason. If it's done in sympathy with the enemy it passes the adherence test, and since it's speech critical of the government it also passes the aid and comfort test.
9.16.2006 4:54am
David M. Nieporent (www):
In fact, this sounds like flag burning done in sympathy with the enemy would be treason. If it's done in sympathy with the enemy it passes the adherence test, and since it's speech critical of the government it also passes the aid and comfort test.
"Sympathy" is not "adherence."

Tokyo Rose did not merely "sympathize" with the enemy; she was acting as an agent of the enemy. That's the difference between what she did, and merely writing a letter to the editor which criticized the government.
9.16.2006 6:05am
Ken Arromdee:
Tokyo Rose did not merely "sympathize" with the enemy; she was acting as an agent of the enemy. That's the difference between what she did, and merely writing a letter to the editor which criticized the government.

I don't think so.

The quote says that "A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest" but that this isn't treason by itself because it only fits the "adherence" test, but not the "aid and comfort" one.

The quote then says that an anti-government speech isn't treason by itself because it does fit the "aid and comfort" test but not the "adherence" test. (Mark suggested that speech *doesn't* fit the "aid and comfort" test, but his own quote says otherwise.)

So it follows that a citizen who 1) favors the enemy and harbors anti-USA sympathies, *and* 2) makes an anti-government speech passes both tests and is committing treason. Neither test requires actually acting as an agent of the enemy; the first one requires only sympathizing with the enemy, and the second requires acting to benefit the enemy.
9.16.2006 12:01pm
Mark Field (mail):
Ken, I was paraphrasing several court opinions which followed Cramer. I necessarily left out portions of those opinions. If you read them carefully, you'll see that they would not agree with your suggestions. The "speech acts" they were discussing involved actual cooperation with the enemy: broadcasts on Tokyo radio, etc. They were specifically trying to distinguish your hypothetical from the facts before them.

Frankly, I think the courts expressed themselves poorly. The treason clause is there precisely because the Founders wanted to avoid treason charges based on beliefs or expressions. They were all too familiar with the abuses which took place in England (Algernon Sidney) and all too aware of the threat they themselves faced prior to and during the Revolution. Inferring "adherence" from words of criticism is all too easy; that would gut the 1A.
9.16.2006 12:12pm
TruthInAdvertising:
Just for historical accuracy, the woman convicted as "Tokyo Rose" was given a full pardon after it was shown that she was forced to broadcast for the Japanese and aided American POWs in Japan.

http://ask.yahoo.com/ask/20020221.html

As to Ken's general comments, history has shown that the US Government has used claims of "treason" and similar charges to silence anti-war critics with claims that they are "aiding the enemy". Your willingness to embrace such efforts is pretty scary from a First Amendment perspective.
9.16.2006 2:19pm
Randy R. (mail):
Ken: If our government was doing all sorts of things that you disagreed with, such as, oh I don't know, let me just guess, like maybe forcing gay marriage upon all the states, raising taxes on the rich for redistribution to the poor, allowing unliminted illegal immigration, voted with the French at the UN, in a war, sided with the Palestinians instead of Israel -- would it provoke you to burning the flag? And if so, wouldn't that be treason, because you are, afterall, disagreeing with the government, and giving comfort to the enemy?
9.16.2006 3:54pm
Jay Myers:

First off, such an argument would obviously not permit the federal government the authority to ban flag burning since the federal government does not (yet) have general police powers.


Not even on federal reservations such as the District of Columbia, federal buildings, military facilities national parks, and territories of the United States? Besides, the fact that it would be "merely a specific kind of arson and therefore there is no reason to specifically ban flag burning" is exactly my point. If existing laws prohibit a behavior then there is no need to seek beyond them. That is why we don't need laws against abortion. Existing homicide statutes already cover taking of another human life and list the few exceptions where such an action is acceptable to society.
9.16.2006 4:01pm
Falafalafocus (mail):
Jay,

I don't know enough about where you are coming from to appreciate your use of my quotes. But I stand by them nevertheless. As for my general police power point, you are corred in pointing out the federal lands exception, but I think my basic premise still stands. Besides, any federal statute on flag burning would be an attempt to ban it throughout the nation, which again should fail based on my earlier comments.

jgshapiro,

I commend you for a nice try in giving the federal government a form of inherent power. As you implicitly accept, there is no provision of the constitution that gives the federal goverment explicit power on this. But this inherent power theory, while initially attractive, leaves me unconviced. An inherent power "to protect a federal symbol" merely because "[t]he flag is, after all, the symbol of the U.S. government and its values, not a state government or its values" seems to me to be too wide a scope of power to leave unstated in the constitution. It is also counter intuitive when you think about it. In essence, you are permitting the federal government authority to criminalize activity done by a private person to his private property based on an unenumerated power. I somewhat think that such an authority would be counter to the general premise of the constitution in the first place, which states in the ninth amendment that all rights and powers not expressly granted to the federal government are reserved to the states or to the people.

Bear in mind, I am not saying that people have a ninth amendment right to burn flags. That is ludicrous. What I am saying is that, if nothing else, the ninth amendment to prevent the very sort of unenumerated federal power theory that you are attempting to conjure up. I therefore remain convinced that there is no way that the federal government can prohibit flag burning as the constititon stands today, regardless of whether we think that flag burning constitutes "speech". In any case, even if you believe that the federal government has some police power over this issue, I posit that this power extends no further than the co-extensive state police power. To argue otherwise would require a blatant power grab by the federal government.

As for state police power, I still don't see your point. You are attempting to state that because the state has the authority to protect public safety and/or morality (in my seminar paper for a third year con law class, I wrote that the only logical impact of Lawrence was that the state could no longer regulate based on morality alone. To save you the trouble of figuring out my ideological persuasion, I wrote in that paper that this new approach was wrongheaded and doomed to failure).

My point, however, is that if you accept this and then attempt to apply these powers to flag burning, then you find that we never reach the issue of whether flag burning is constitutionally protected speech. I base this on a cental premise of constitutional interpretation:

Before the Supreme Court can determine that you have a constitutional right, we need to know that the state or federal government has the power to regulate it, at least in the general sense.

Let's take safety. In order to regulate for safety concerns, then the state needs to basically be reasonably concerned that there will be a clear and present danger if the flag burning occurs. Let us assume that the state can meet that burden. Let us also assume that flag burning is speech. Well, speech has an exception for "fighting words" and for words which may incite immediate danger. That was my point with Chaplinsky in the first place. I may have cited the wrong case, it's been a while. If the state is reasonable in believing that there is a public safety threat, in the form of a danger of riot or violence, then the state would have the obstensible authority to prohibit flag burning and the argument that flag burning is speech should not have been able to permit the activity.

On the other hand, if we assume that there is no credible argument that this is a public safety hazard, then the state has no basis to regulate in the first place. The result in this analysis is that we do not reach the constitutional right theory because the state lacks authority in the first place.

Either way, we don't reach the question of whether flag burning is "speech".

The other basis you have invoked is "morality". I'll buy that. But the problem with that argument is that I don't see the morality or immorality in the act of flag burning itself. Let me rephrase. What is it about flag burning that, per se, makes it immoral? Is it immoral in all cases and at all times? I humbly note that if a flag is damaged, the U.S. military requires (or at least it did) that the flag be burned. I don't think that this is an immoral act. But in order to regulate based on immorality, we need to be able to say that the act itself is immoral regardless of the reason or context. This is why I don't think that the morality police power will save a prohibition on flag burning.

For the record, I am firmly uncommitted on a flag burning amendment. I am merely pointing out that there is no current federal or state power to regulate this activity regardless of whether a person believes that it is speech or not. I am also firmly aware that a flag burning amendment would remove my concern here. Because no such amendment currently exists, however, I write this to express my concern that we are all getting too hyped up on whether this is "speech" and what kind. I realize that the Supreme Court has spoken on this matter. I am merely pointing out that I think that the Court could not, and should not have gotten there because I still don't see a governmental authority to regulate in the first place.

Flag burning is not about "speech". It is all about government power. If we take a minute to consider this, then we may be able to stop arguing in circles about the wonders of this "speech" and start talking about how much power we want our federal government and state governments to have.
9.16.2006 6:08pm
jgshapiro (mail):
Falafalacious:

In order to regulate for safety concerns, then the state needs to basically be reasonably concerned that there will be a clear and present danger if the flag burning occurs . . .

Let us also assume that flag burning is speech. Well, speech has an exception for "fighting words" and for words which may incite immediate danger.

First of all, you are, intentionally, or not, conflating the very distinction you (correctly) draw when you say "[b]efore the Supreme Court can determine that you have a constitutional right, we need to know that the state or federal government has the power to regulate it, at least in the general sense." The clear and present danger test is a question of First Amendment doctrine, not a question of governmental regulatory power. Same with the question of fighting words. These concepts would not exist but for the First Amendment. Repeal the First Amendment, and they become moot.

Second, in practice, the state police power is essentially the power to regulate anything at all, except that which is prohibited to the states because the Constitution grants Congress a monopoly on a particular type of regulation (e.g. the post office) or the power to preempt state law (e.g., the commerce power). So, at least one of Congress or the states must have the power to regulate something in the first place unless it is expressly denied to both in the Constitution. It's one thing to argue that the federal government lacks power to regulate flag burning because it is a state police power issue, or that the state governments lack authority to ban flag burning because the flag is a federal symbol. But it is another thing, which makes no sense, to argue that neither the federal government nor the states have the general authority to regulate flag burning absent an express ban in the Constitution. There is no such ban in Article I, Section 10 or Article IV. The only possible place is in the First Amendment. Your whole argument has been that the Supreme Court should not even need to reach the First Amendment.

Third, if the federal government has the power to create the flag, it follows that - absent the First Amendment - it has the affirmative regulatory power to prescribe a code of conduct for caring for the flag, including consequences for intentionally desecrating the flag. I suppose, read literally, the Constitution grants no inherent authority to the government to create the flag in the first place, but that is a specious ground on which to fight. All nation states have a flag and the Constitution essentially creates a nation state. The Constitution grants no explicit authority to create an Air Force either (just an Army and Navy), but I think the authority is inherent there too, notwithstanding the Ninth Amendment, whatever that means.

Finally, I think you are reading Lawrence far too broadly if you think it creates a ban on state morality-based statutes. Lawrence stands for a narrow holding limited to private non-commercial sexual conduct, and has its roots as much in privacy concerns as in any Thoreuvian principle. There are no privacy concerns in publicly burning a flag and I doubt anyone has ever burned a flag in private. At least no one has ever been prosecuted for it. The whole point is to piss people off, and you couldn't do that if the act wasn't public.
9.17.2006 8:57am
Falafalafocus (mail):
jgshapiro

I believe that you are making a valiant attempt here, but I believe that it still fails.

You may think that I am conflating a first amendment exception with the scope of a state police power. I don't know about that. In the context of flag burning, I think that they are flip sides of the same coin. The reason is that the police power cited in this case would (at least in my view) result in an exception to any first amendment claim as a matter of course. I recognize that the two are separate and distinct, but if we accept that the police power exists, then we must analyze whether there is an exceptio to any claimed constitutional right. My point is that the same state claims which would support the police power would also support the exception to the claimed first amendment right. I can therefore see how you believe that I am conflating the two, but I am merely pointing out that the exact reason that a state might arguably regulate this is the exact reason that the Supreme Court should not have beem able to call this protected speech. I guess we may just have to agree to disagree on this matter.

The second point you make is that eiter the state or the federal government must have this power because some government must have authority to regulate all things. As a subargument, you point out that because the federal government has the power to create a symbol, it has the power to regulate it. I openly question both theories of government power, and proudly so.

Starting with your subargument first, this is commonly known as an argument that "the power to control the greater includes the power to include the lesser". Chief Justice Rehnquist believed in this at one point. However, especially in the context of First Amendment, this theory has been abandoned. I can't cite the case off hand (I'll look, if it really is that important though). But we know that simply because the federal government may have the power to prohibit illegal drugs, it does not give the government power to prohibit us from advocating for those same drugs. In this case, you are arguing that the power to create the flag means that the federal government has the power to regulate alleged speech regarding the flag. I humbly propose that your theory has already been rejected.

As to your main argument, with due respect, your theory is contrary to the ideals of the constitutional system (though probably much more in keeping with the ideal of a democratic system). You propose that at least one government must have te ability to regulate this because some government must hve the ability to regulate all things. I disagree. While the state police power may cover nearly all important things (let us assume that the state could even regulate flag burning, for sake of this argument), it does not have limitless power. The U.S. Supreme Court has consistently said that the state may regulate only so long as it is (At least) reasonably related to health, safety, or morality. This can cover a lot of ground. But I see nothing that gives the state the power to prohibit people from wearing a T-shirt on tuesday. It is only if you disagree with that that you can then argue that the sttate has limitless police power.

If you agree that the state's power is limited, then you are merely questioning the limits I am placing on it. Those are not my limits, but the U.S. Supreme Court's.

Finally, Lawrence. I don't want to get too deep into this because this is pretty far afield from the topice of flag burning, but I'll try to give a quick explanation so that I am not misunderstood. If you read Lawrence carefully, you will see that the U.S. Supreme Court did not create a constitutional right to same sex sodomy (or to sodomy in general, although that was the attempted direction by Justice O'Connor). The only other ground to stop the state of Texas was therefore to say that this was not a ground for regulation. But the state clearly could cite to morality. I therefore read Lawrence to say that if the basis of the regulation is morality alone, then the state cannot regulate. It is unclear but I believe that Lawrence does not prohibit the state from regulatingbased on both morality and another basis. I also wrote that this was an illogical attempt by the court to deprive the state of the morality police power. But I've already gone on way too far on this topic.

In sum, while you make a valiant attempt, I still see no basis for either federal or state police power, at least to the extent that we can then call flag burning protected speech. Either the state (or in your theory of government, the U.S. government) has the power, and for the same reasons we do not classify this as protected speech, or neither government has the power so we do not reach the question whether this is protected speech.

These decisions (Texas v. Johnson and U.S. v. Eisenstadt) are therefore results oriented attempts to resolve an issue that was not properly before the Court. We should, I argue, treat it as the dicta it is. Flag burning is not about speech. It's about the power of the state and federal government to regulate.
9.17.2006 1:10pm
jgshapiro (mail):
Falafalacious:

My point is that the same state claims which would support the police power would also support the exception to the claimed first amendment right.

Your first post claimed that we didn't need to examine the free speech nature of the dispute because state governments lacked the right to regulate flag burning in the first place, notwithstanding the police power. You are now arguing that if there is a state police power justification for passing these laws, it must create an exception to the free speech guarantee of the First Amendment. That is not the same argument. Nor is it true.

You provide no case support for your argument, and I don't believe you could if you tried. A police-power exception to the First Amendment would trump every First Amendment claim against a state. The First Amendment only applies against governments, not private entities. With respect to states, that means it applies to various exercises of the police power. But if the police power creates an automatic exception to the First Amendment, the Amendment does nothing against a state law or regulation. It would be an empty promise. The exception would swallow the rule. As the many successful First Amendment cases challenging state laws prove, that is clearly not the case.

Perhaps you believe that the police power would create only certain exceptions to the First Amendment, but not others. But you provide no rationale for why the police power exception would apply to the U.S. flag and not to other flags or items and to countless other acts of expression. How could a state not have the power to regulate flag burning under its police power, but nonetheless have the power to regulate other expressive conduct that affected public safety or morality? I think you have been misled by Chaplinsky, as have countless other law students before you. It doesn't mean what you think it does. It never did, and it has now been watered down to the point where it means next to nothing.

As for the scope of the police power, I was speaking in practice. Theoretically, a state can only regulate morality, health and safety under the police power. But in practice, this includes just about everything. You don't need much of a connection to one to come within its scope. And as I noted earlier, the government has both a safety and a morality argument for flag burning statutes. Therefore, absent the First Amendment, they would survive constitutional scrutiny. [As for Lawrence, you brought it up, not I. All that needs to be said is that it is nowhere near broad enough to eliminate the morality portion of the police power altogether (that is, outside the sodomy context). So, it doesn't help you here.]

You seem to have dropped your literalist argument in claiming that because there is no reference to the flag in the Constitution, Congress lacks the power to create, prescribe a flag code or prohibit the destruction of the flag. You cite no cases for concluding that Congress has the right to do one, but not the others. Instead, you now claim that this is a greater-includes-the-lesser argument (so I suppose you quietly concede that Congress has some implicit and inherent power here), but you don't explain why the line would be drawn where you draw it, as opposed to where Congress has tried to draw it.

With all due respect, I think it is you - not the courts - that is looking at this from a results-oriented approach. You seem to want the flag burning statutes to survive, but you can't distinguish them on free speech grounds from other speech, so you have come up with an alternate regulatory power argument designed to avoid this. The problem is that your alternate argument just doesn't wash. The correct conclusion is that because the flag-burning statutes cannot be distinguished on free speech grounds, they must be struck down, regardless of how odious the speech is.
9.17.2006 4:38pm
Falafalafocus (mail):
jgshapiro,

With due respect, a few errors are posited in your post regarding your belief as to my ideals and my views. First of all, I have never stated my position regarding a flag burning statute or amendment. In fact, I stated previously that I am an avid neutralist on the merits of those proposals. I am merely positing the constitutional merits of each. I think it is therefore a bit unfair to label me as a results oriented seeker on either.

As for Lawrence, yes I did bring it up, but only in passing. My earlier comment remains.

As for the dropping of the literalist concept, I have done no such thing. I began with my first post which stated unequivocally that there was nothing in the constitution which permitted the federal government to regulate flag burning. You then posited an inherent power. I responded to that. You then posited a greater includes the lesser theory. I responded to that. It seems a bit problematice to then complain that I dropped the literalist point.

As to the police power concern, I am not saying that simply because there may be a police power, therefore the first amendment has no application. Nor have I ever made such a silly argument. Instead, what I have been saying is that if the alleged police power is public safety because there is a clear and present danger of violence (riots and such), that there is an equal and cocommittent exception to the first amendment which would preclude a responsible Supreme Court from calling this protected speech. If the state can regulate based on morality alone, then obviously this is not a concern. I have repeatedly stated, and you have not argued anything specific to the contrary, however that there is no reasonable morality argument here.

You make a fair point that my first post stated that I saw no police power available which would permit regulation. You found one, and I commend you. But my general criticism remains. If I accept that we need to regulate to stop a riot, then how can we then call this protected speech?

Imagine that a person is shouting to a spectator crowd "kill the police now!" at a rally where police are present and the crowd is upset at a recent police involved shooting. Can that person be stopped? I believe that the answer is yes. But what about the first amendment? The exception applies with full force. Does this mean that the exception swallows the rule? I think not. But the police power you invoke and the "reasonable basis" for it seem to lead to this conclusion as a matter of course.

I therefore commend you for finding a police power to regulate. But by your comments, you are convincing me that my more pressing point is correct: there is no way that the U.S. Supreme Court should have been able to call this protected speech. Either there is no police power, or the exact same reasons justifying the police power (prevention of mass violence and/or riots) bars the first amendment protection. As of this posting, you're only argument against this is that Chaplinsky doesn't mean what I claim it does. I therefore ask you to show me a distinction here. What public safety does a flag burning prohibition protect against which would not be a threat of imminent violence at the exact same time??

As for flag burning being speech, I have made no statement on that one way or another. The closest you can cite to is my constant refrain that "flag burning is not about speech. It is about government power." I humbly dissent to your implication that I think that flag burning is not speech. Such a reading can only be made if you take my sentence out of context.

My concern has continued to be that I simply fail to see how a jurisprudentially sound Court can get there. Perhaps I am too naive to see that all right thinking people simply want the court to resolve the hot button issues. If so, then allow me to remain blissfully ignorant because I was under the impression that the Court's only job is to resolve a conflict, preferrably with as little new law as possible.
9.17.2006 6:22pm
David M. Nieporent (www):
Falafalafocus,

What you seem to be missing is the difference between a narrow proposition and a general rule. The following statement is correct: "Under some circumstances, flag burning could lead to riots." Therefore, the state can ban it under its general police power. (But not the federal government, which has no general police power, except in DC and other federal reservations.) But the fact that under some narrow circumstances, something bad can happen doesn't mean that the government can ban a type of speech generally.

There are obviously many times when a flag is burnt when no violence is imminent; therefore, a law that bans all flag burning is overbroad, given that flag burning is a form of speech.
9.17.2006 9:44pm
Falafalafocus (mail):
David,

I think you've finally explained to me the situation in a way that makes sense. I understand the distinction you are making. I have to mull it over for a while though. Part of the problem is that I must simply be misunderstanding the police power in your example. As you point out, just because there may be a riot, does not mean that there will be. My concern is that we don't even know that it is reasonable to believe that there ever will be. To my knowledge, there has never been a riot within the criminal jurisdiction of the U.S. because of a flag burning. What I have been arguing throughout is that it may well not be reasonable to prohibit this and therefore no police power would attach.

Your use of overbreath is a fair argument, but doesn't really go to my point, because I am concerned about the validity of the police power, not whether the police power exists but the first amendment prevents its use.

You point seems fair. If we can assume that it is reasonable to believe that there will be violence from a flag burning in general, but it would be unreasonable to expect it in this case, then it may be a validly enacted prohibition which is countered by first amendment concerns. It may be my lack of imagination, but I cannot conjure the hypothetical situation where that would exist.

I would argue that any time that the state (or federal government acting in federal territory) acts based on a police power but the underlying facts don't support the general rational basis, then we should not enforce the act in that case. A kind of unconstitutional as applied theory. I don't know enough about the current state of law to use this as a justification though.

In any event, I don't recall that Texas v. Johnson or U.S. v. Eisenstadt rested on overbreath. If I'm wrong, I appologize.
9.17.2006 10:19pm