I often hear people say that the First Amendment doesn't protect flagburning, because it's conduct rather than speech. My view is that burning a flag, like waving a flag, is a conventionally understood form of communication, and both should thus be treated as "speech" no less than, say, handwritten materials (which are literally neither "speech" nor "press"), elephant or donkey pins worn around campaign season, paintings that have no words, and the like.
Of course such conduct may often be restricted because it causes certain harms through its noncommunicative component -- an ordinance prohibiting fires in a brush zone could be used against flagburning. But this just reflects the analogy to literal "speech"; an ordinance prohibiting loud noises at night in a residential area could be used against the use of loudspeakers at 11 p.m. (even when the loudspeakers are used in the process of literal "speech"). When, however, either the loudspeaker use or the flag waving or the flag burning is banned because of its communicative effects, for instance because they convey offensive messages or supposedly diminish the emotional force of certain symbols, that is a speech restriction that should be evaluated under the First Amendment.
But for those who disagree, let me ask: SFSU is investigating (with the threat of administrative punishment) the College Republicans for, among other things, supposedly being "incivil" and creating a "hostile environment" by stepping on butcher-paper representations of Hamas and Hezbollah flags (which also contained the name of Allah in Arabic script). If you think that there's no First Amendment problem with banning flagburning, on the theory that it's not speech, I take it that you think there's no First Amendment problems with punishing (even criminalizing) the Republicans' actions, right?
Likewise, if SFSU tried to punish a student for waving a Confederate flag (assume no special circumstances such as the flag's being stolen, or the waving been intended and understood as a personal insult and invitation to fight addressed to one particular person), I take it you'd say "Sure, no First Amendment problem," right? Or is there a distinction here I'm missing?
All Related Posts (on one page) | Some Related Posts:
- Governments -- Don't "Inflexibly Cling[] To Free Speech ... With Absolute Disregard for Religious Feelings":
- McLean's Article on the Campaign to Create an International Law Norm Banning "Defamation of Religion":
- Opinion Preliminarily Enjoining SFSU Civility Code...
- The New Anti-Blasphemy Laws:
- Expressive Conduct:
- State University Considering Discipline of Students for Walking on the Word "Allah":...
- The Effort to Ban "Defamation of Religion" and the Democracy Deficit of International Law:
- Baltimore Hebrew University Professor Supporting Legal Penalties for "Negative Depiction of Religion":
- A New International Law "Value" -- Freedom from "Defamation of Religions"?
Which isn't to say I support the College Republicans being punished by the school, I am just trying to understand the link between the two in your post.
I think its cut and dry that College Republicans can stomp on whatever inanimate object they want, but does speech need to violate the first amendment in order for administrative punishment to be handed down.
Which isn't to say I support the College Republicans being punished by the school, I am just trying to understand the link between the two in your post.
Speech needs to (a) violate an established rule and (b) fall into one of the narrow categories unprotected by the first amendment for a punishment to be handed down (by a governmental body), whether that punishment is called "administrative" or something else.
I think people who argue that flag-burning is conduct rather than speech are simply looking for a legal hook to justify what they would probably admit, privately, is a content-based restriction. Burning the American flag upsets them - in a way that burning the flag of Hezbollah would not - and so they want to ban it. Maybe this post is just another way of taking a jab at their intellectual honesty, but still, just because someone agrees with Austria's ban on Holocaust denial doesn't mean they would agree with a ban on any other type of speech.
I disagree. I think that the slippery slope is very real. Both in Europe and here in Canada there have been attempts to apply laws against "hate speech" originally aimed at Holocaust deniers and neo-Nazis to to suppress such things as criticism of Islam and debate about homosexuality. Once people get it into their heads that it is acceptable to forbid speech because they don't like its content, they will try to do more of it. Since bans of this sort don't do any good - if anything they merely reinforce the persecution complex of those whose speech is banned and suggest to others that there must be something to it else there would be no need to ban it - I think that the only reasonable approach is full freedom of speech for everyone.
The Confederate flag example is more difficult for the anti-flag burning crowd. I'd focus on that.
-nj
I second the need for an "edit button".
Yes, but they will "try" to do it anyway. Here in America we take the idea of free speech so far that we will allow you to burn our own flag, and yet people are always trying to ban things. People will argue for content-based restrictions on speech whether the law recognizes a "special exception" or not, so I don't think the presence of such arguments shows that there is a slippery slope.
What I'm not seeing from the countries which ban Holocaust denial is any signs of actual progress down the slippery slope. The fact that some people are lobbying for more speech restrictions doesn't amount to a whole lot.
Anyway, my point is that most arguments I hear for why a flag burning ban is constitutional are grounded in estoppel, rather than a conduct/speech distinction.
For the record, I don't think flag burning should be protected, because the first amendment does not cover treason. But there's a distinction.
Not if they think that both the display of the Confederate flag and the burning of the U.S. flag should be banned, as acts of sedition against the United States.
The SFSU should have better things to devote its time to-- like teaching tolerance. To this end, I suggest a Flag Stomping Day be instituted on which the observant are invited to stomp on flags of their choice-- provided they paid for their flags. Then, we can all enjoy stomping on Hamas, Israeli, Palestinian, German, British, US, Russian, Saudi Arabian and other choice flags. Subsequent burning being optional.
The first Flag Stomping Day is set for April 1, 2007. Get ready for there are hundreds of flags to choose from. The flag possibilities are simply too numerous to list as they are not limited to National flags. Flag Stomping Day is in complete accord with all religions, specially with Abrahmic religions, which discourage idol (and idle) worship anyway.
If somebody else's feelings are hurt by my exercise of my property rights, well, too bad for him. Get a thicker skin.
It's not flag burning per that should be unprotected, but burning of the American Flag. But why should the American Flag be protected? That's harder to explain, but my gut says it should be. And I don't think there is any serious harm to banning the conduct. If people hate America then they should just say so.
But concerning the Confederate flag, here at LSU the school paper and progressive types have an annual hissy fit in the fall over tailgaters who display a Confederate flag that uses the school colors, purple and gold, in place of the red and blue. The Administration won't try to ban it for Free Speech reasons though many want it to go away. I think those who display it are stupid to upset people, but in their defense, LSU is full of Confederate history.
a link to one of the many stories by the LSU Reveille.
LSU Reveille on the flag
Some 2L
It was my understanding that treason consisted "only of levying War against [the United States], or, in adhering to their Enemies, giving them Aid and Comfort." I don't think burning a flag constitutes levying war (even under the broadest plausible reading of "unlawful combat"), nor does it constitutes adherence to the enemies of the United States (unless you make some sort of bootstrap argument that the very fact of burning the flag is one in which the flagburner sets himself up as an enemy of the United States, and that he has adhered to himself; maybe someone in the Bush Justice Department could make that argument with a straight face; I couldn't).
Would something like the prosecution of Oriana Fallaci in Italy for "The Rage and the Pride" qualify as evidence of actual slipping down the slope for you?
Brian
But that special history is the *only* reason you can even arguably claim there is a "presumption of intimidation" with respect to a burning cross. There is simply no valid ground for suspecting that when some hippie burns an American flag, he's trying to convey a message of "
n****rpatriot, get back in your place or get out of town."Interesting. I think there is a serious harm.
There is, in this country, a fundamental right to criticize the government, indeed, it is one of a collection of rights that many of us cherish when we take pride in viewing the American flag. A prohibition on flag-burning transforms the flag from a symbol of freedom to a symbol of repression of dissent. That's not what I want my flag to stand for.
I cannot imagine (outside of proper disposal) burning an American flag, and I have little respect for those who choose to do so. I am not a Catholic or a Catholic defender, but I found Sinead O'Connor's burning of the Pope's photograph on Saturday Night Live to be provocative and disrespectful. I do, however, support her right to be provocative and disrespectful. It diminishes the flag to even hint that it is such a weak symbol that some misguided soul's burning of it could somehow lessen its value.
I don't know. You need to draw the line a little more clearly between a narrow statute aimed only at banning Holocaust denial, and the subsequent expansion of the law to permit the prosecution of people like Fallaci. I simply don't know enough about the case to understand if that's what happened.
Speaking of loudspeakers and SFSU, I hope everyone remembers the late President (and later U.S. Senator) S.I. Hayakawa.
I'll stand by that. Walking on stuff is not primarily used for conveying a message, so it is less deserving of First Amendment protection than actual speech. If walking on drawings of flags were banned, the College Republicans would not be left without a means of expressing their contempt for Hamas and Hezbollah, so I wouldn't find such a ban as particularly troublesome. (That doesn't mean I think that such a ban is a good idea. I don't.)
If it were to be a crime, how do supporters of such a law distinguish those who are burning the flag as a sign of disrespect to the United States from those who are burning the flag to properly dispose of it?
You mentioned the "prosecution" of Fallaci for "The Rage and the Pride". Could you provide a link for this? I googled around and found only that some people were upset, that some people tried to get the book banned, and that the government said no.
Prosecution implies government action, while 'people getting upset' is - at best - persecution.
PS. I did see an article saying that the president of the Italian Islamic Party called for Muslims to "go and die with Fallaci," but then Ms. Fallaci sued him for slander and instigation to murder.
Oops. I hope that doesn't obscure my point, which is that the Pope wasn't diminished by O'Connor's actions and the flag isn't diminished by the actions of a demonstrator with a lighter.
What I'm not seeing from the countries which ban Holocaust denial is any signs of actual progress down the slippery slope. The fact that some people are
lobbying for more speech restrictions doesn't amount to a whole lot.
The laws against holocaust denial are already very broad extending to more than making knowingly false claims; in Germany , France Belgium and Austria and other European countries the prohibition extends to trivialization, justification or approval which apart from the selectivity inherent in such a ban is also viewpoint based
censorship.
You are equally punished for stating that Auschwitz is a big lie as for just stating that it was just punishment for the Jews.
Under most European laws against hate speech, which in most countries constitutes a distinct offense from holocaust denial, saying things in public insulting or degrading against an identifiable group on account of race, religion,national or ethnic origin or sexual orientation is unlawful whether or not it may be characterized as a value judgment, hyperbole or an allegation capable of being proven true or false. in Denmark a politician was given a suspended prison sentence for saying that the aliens breed like rats, and
another was fined for advocating that the appropriate response to a future terrorist attack was internment of Muslims in concentration camps.
So the laws against hate speech and holocaust denial are indeed very broad and not limited to calculated falsehood or raw insults directed at the target group. In some cases the speech at issue is just a petition to the public or the legislature for support of policies, that if enacted would violate the human rights of minorities.
The only reason why the breadth of these laws is not well known less the cause for much concern outside Europe
is the understandable lack of sympathy for those whom are the most frequent subjects of prosecution.
The proper way to dispose of a flag (US Flag Code) is to respectfully burn it. Therefore, the only difference between "flag burning" and and respectfully disposing of a flag is the speech, or the message that is communicated by those two otherwise similar acts.
I can easily imagine living for centuries without ever once becoming confused over this distinction. Is it really that hard?
What they did was make a political statement against Hamas, an open and violent terrorist organization. If the pro-Hamas leftists don't like it, they have two options: Suck it up, or move to the Middle East, where they need not worry about being forced to endure from hurtful, uncivil, and insenstitive anti-Hamas speech.
[* except in California, where I'm sure I'd fall afoul of some CARB emissions regulation and be subject to some sort of summary conviction and fine]
If we allow citizens to burn flags in public places in order to dispose of the flag, I dont see any way to criminalize any other form of flag burning.
Indeed. But what about American flag burning? A freedom-loving hippie might suggest that if you are offended by his flag burning, you either suck it up or move to some oppressive Middle East state, where the desecration of national symbols is verboten.
If ALL flag burning is cool with you, then you're off the hook. But, unless you come up with a distinction, you're as bad as the "hypocrite leftists" you've identified.
Oh, there's a slippery slope.
Sealawyer:As I mentioned, most flagburners are sending a message of patriotism and respect for the government and the nation. People who burn flags in protest are generally trying to send a message of disrespect or disapproval of the government or particular government policies (usually wars) that they dislike.
The problem with your property rights argument is that the exceptions, one of which you identify, would swallow your rule. You simply do not have the right to dispose of your possessions as you see fit. In most urban areas, and in most of Texas during the summer, you may not burn them. And depending on their chemical compositions, you may not throw them in the trash. Nor may you throw them out your car window, even unintentionally.
Quoting Debra Saunders' column of today:
It sounds to me like SFSU (there's a reason students at other schools in the state university system call it So F***ing Screwed Up) is trying to establish a religion.
In answer to CJCollucci's question - certainly not in California. The Leonard Law, passed in 1990, explicitly provides that any behavior protected by the First Amendment off-campus is protected on-campus.
Nick
I'm curious about the extent to which you think your constitutional theory and your political theory (or theories) yield similar normative conclusions. I'm curious because I think it's actually quite hard to take a view on whether flagburning *is* protected speech that's not informed by a view as to whether it *would be* protected speech in a constitution you were able to write. I suspect you're better at recognizing the distinction than most law professors. See, for example, the utterly pathetic attempt of FAIR to argue that the Solomon Amendment violated the First Amendment, which was nothing other than a self-indulgent exercise by a bunch of law professors who don't like "Don't Ask Don't Tell" and think that the constitution should reflect that policy preference.
I see no difference between this and flag burning, except that flag burning of a US flag, at an anti-war rally or similar anti US government protest, is expressing protest speech at the government as opposed to a different group within society.
In this instance, I agree that SFSU's investigation is a stupid idea and may be "chilling" of legitimate speech that is at the core of the First Amendment's protection.
But, I am not sure it necessarily follows that all "hate speech" codes, or anti-cross burning laws, or Holocaust denial laws, are invalid for the same reason. The context of the speech/conduct is important, both in determining whether it is in fact "speech" that is being punished and whether it should be punished. For example, I assume we all agree that lighting a US flag, to burn down a house, is conduct that can be punished, even if there is some expressive motivation behind using the flag as opposed to something as to set the firm.
If I held up a picture of GWB (or substitute the politician of your choosing) and and then said "here's what he's doing to the counrty I love" while burning a flag, is that "hypocritical" speech undeserving of First Amendment protection?
BrianG
A little more light, a little less heat, hmmm?
TBaugh
Then you would run into constitutional overbreadth problems. See NY and their disorderly conduct statute (specifically 240.20 (7)).
To make it clearer, if some one copies a DVD, we leave it to the Studio, the Congress, Customs or Microsoft to come to their rescue without requiring ordinary Joes to feel insulted due to and exact revenge for the perceived transgression against the divine rights.
Is it really a content ban? If I burn the flag on the courthouse steps to send the message that I despise America and everything the flag represents, then I would presumably be violating the ban. But if I stand in the exact same place and say, "I despise America and everything the flag represents," I don't run afoul of any ban. My content has not been banned; only a certain form of conduct has been banned.
That's not to say that content-based distinctions are not being made in the conduct ban--they are. But the content itself has not been banned.
How about: Woe to those who wrap themselves in it.
It good to see you come around to that position. I presume you would also ask anyone who would ban the burning of the US flag to leave the University as well because they are "clearly too narrow minded and intolerant to be educated there."
MS, you have the upperhand in this argument. And I'm too tired to argue back or split hairs. Nor do I feel that strongly about it. Or, though it really annoys me that some people would deface the American flag, I enjoy the reciprocal benefit of knowing who the dummies are.
It's like those wide mufflers young guys put on their cars to make their engine sound louder, he thinks he's being cool, but really he's just informing everyone else who the moron/bad driver is.
Protesters who burn flags do a wonderful blessing of showing us how foolish they are.
What do you think they are doing when they burn the flag? That was one of the points of this post: flag-burning is a means of communication just as surely as vocalization.
Note: I'm not saying that burning the flag means you "hate America," necessarily, though it could mean that and maybe it often does. My point is just that it's pointless to tell the flag-burner to "just say" whatever he's trying to express, because he IS "saying" it, in the sense that he's communicating it.
Now, it may be the case that flag-burning is more ambiguous than actual words, but speech doesn't have to attain any particular level of clarity before it's protected by the First Amendment.
It is hard to tolerate people who damage the reputation of their own country or party -- with actions solely calculated to insult -- but it is easy to understand why their political enemies wouldn't be in any rush to interrupt or to educate them.
Public demonstrations call for public discussions. Don't enshrine every single mistake in official paperwork for the university archives. Let everyone, including the catspaws, hear public reactions and then move on.
I don't know what I did to justify all these people throwing hypotheticals at me, without so much as a link to refer to, let alone a statutory citation.
Steve - With the exception of only banning flag burning in public places (or in areas where there is a protest), the act of burning a flag is the same regardless of whether you are making a political statement or disposing of the flag.
Lots and lots and lots of laws take intent into consideration. You didn't even address my point that I can conceive of no real-world situation where I would have trouble distinguishing between someone burning the flag out of respect and someone burning it as a protest.
I don't think open-burning ordinances (or littering ordinances) suffer from overbreadth problems. For reasons of public safety/health, in certain areas open burning (such as leaves, trash, and certainly flags of any type) is prohibited. I don't think that applying these ordinances to burning flags is problematic (but I don't see how one could make stepping on a flag of any time a crime under the First Amendment).
For example, I can yell "The President is an idiot and here's why . . . !" in a public square and the government can't prosecute me, but if I'm an attorney in the Justice Department and I do that in a business meeting, I can properly be disciplined. And if a public school student goes on some long political diatribe and won't shut up in, say, a math class, that student can properly be disciplined.
I'm not saying SFSU *should* discipline the protestors (although I agree with Kovarsky's characterization of them). But the question "would the First Am. prohibit criminalizing this conduct?" doesn't answer the question of whether SFSU legally *could*. And FWIW, I think the First Am. does, properly, prohibit criminalizing both this conduct and U.S. flag burning.
Beyond that, as a meta point, we are, I hope, aware that flag burning in the U.S. is very, very rare. Between that issue and the "spitting on Viet Nam vets" debate in the other thread, it seems like "revisit the culture wars of the 1960s" day here at the VC (that's directed at some of the comments, not EV's original post).
Are there any cases from the era about such things? They did burn effigies. Was that considered protected?
However: I find the currently popular notion that all expressive conduct is free speech protected by the First Amendment ridiculous. There is a legitimate argument, I think, about how far the Framers intended this to go. They clearly did not intend to strike down all criminal libel laws, or civil laws against slander and libel. They did not intend it to gut the treason definition. I think there's a pretty good case to be made that they did not intend it to protect obscenity.
I do not agree with those conservatives who imagine that it was only intended to protect political speech. However: political speech was certainly intended to be protected, something that seems to have gone over the heads of our Supreme Court, in upholding McCain-Feingold. (Liberals love free speech, except when it works to the benefit of Republicans.)
Still, if someone had shown up in front of Congress in 1790, stripped naked, covered herself with chocolate sauce, and explained that she was engaged in a form of expressive conduct protected by the First Amendment, I think it unlikely that there would have been anyway prepared to argue her position. (Well, maybe some Quakers might have, recalling the Quaker tradition of disrupting Anglican church services by entering the church wearing only ashes.)
-dk
"What I'm not seeing from the countries which ban Holocaust denial is any signs of actual progress down the slippery slope."
It seemed odd in light of recent events in Europe, of which you are apparently unaware.
Here's a link for you:
au.news.yahoo.com/070207/19/12cch.html
And oddly enough, at the same time, violence against Jews in these countries is hitting record highs.
I personally agree with the point of your post. However, if we accept the concept that cross-burning is special First Amendment speech that can be limited because of the history and emotions it provokes, then perhaps there is a similar argument that burning the American flag (in a place that is subject to American jurisdiction) is a special case that should be treated differently than burning the flags of other nations.
Well, I *am* offended by his flag burning, but I also believe in free speech, so I will suck it up. Why is that so hard?
This is a brilliant suggestion.
BTW, DMN/CrosbyBird, how many other BBTFers are around here (someone has already registered 'cabbage' here at Volokh!).
However, if the proper way to speak to congress was also to show up naked, covered in chocolate sauce then she would have a case. Your analogy was not analogous because you failed to address the undisputed fact that the conduct/speech in question and the proper disposal of a flag both involve the burning of the flag--and therefore the only difference is the message/speech involved.
There's me, though I stopped posting at BBTF a while ago.
That doesn't mean I think they should be illegal. There's no provision for "freedom from offense."
However, is SFSU public property? Do they have the right to regulate expression on private property? Doesn't the First Amendment regulate the government's ability to regulate speech, not private institutions?
I've been in restaurants and bars with signs up to the effect "We are a family establishment - cursing and out-of-control behavior will result in removal." Shouldn't this be legal?
Words that threaten violence ("We'll kill you niggers") are unprotected, because they fall within a First Amendment exception for threats; so is expressive conduct. Likewise, to the extent that "fuck you" said to someone may fall within the "fighting words" exception, so might showing him one's middle finger -- finger gestures are treated the same as speech, are presumptively protected, but may be unprotected if they fall within an exception to protection.
The history of cross-burning is relevant only because it shows what message the cross-burning is likely to convey -- and it's the message of threat of violence, and not generally the ability to arouse negative emotions and historical references, that makes it unprotected. Since flag-burning is not usually seen as a threat of violence (and not usually seen as fighting words in the sense of an insult addressed to an individual listener), the punishability (in some situations) of cross-burning doesn't show that flag-burning should be equally punishable.
The Confederate flag might be a bit of a special case; as the symbol of the Confederacy, it is a de jure symbol of armed insurrection against the US federal government, and might be regulated within the "aid or comfort" clause of Amendment XVI, I suppose. It might also in certain contexts (EG: a NAACP rally, while clad with white hooded robe) constitute "fighting words"... a better attack on the conduct in question.
There still remains the problem of the language of the first amendment. Why did the people choose to ratify "speech" and not "expression"? It might be that we think it is wise to protect expression constitutionally, and I might be sympathetic to that position, but I'm not sure that is what the constitution requires. The people who wrote and ratified the first amendment were familiar with the word "expression" and chose not to employ it.
They obviously meant something beyond the strictest definition of "speech," because written words were always considered protected.
Fail to accomplish anything but what leftist agitators like to do most: make themselves feel superior while spending Daddy's millions
Liberals love free speech, except when it works to the benefit of Republicans.
Clown.
Perhaps to you. My feeling is that we have a fundamental right to express themselves in a manner in which many reasonable people might take offense. An individual's or a group's offense should not trump another's right of expression -- one can be free without being protected from offense, one cannot truly be free without the right to speak one's mind.
There's a substantial difference between speech so provocative that it is all but guaranteed to cause violence or crime, and speech that makes someone hurt, angry, or offended.
You should not. In Hill v. Colorado, the speech is presented in such as way as to present an obstacle to someone obtaining legal health services. It's an issue of being unable to receive medical care unmolested.
One cannot change the channel or cross the street to remain unmolested. We're talking about respecting the personal space in a very limited subset of the public arena within a limited space. Not even always that. The speaker may be two feet away so long as they do not follow and harass someone who does not consent to share a conversation, or outside the 100 foot restriction.
I would support as constitutional similar legislation that prohibited similar conduct within similar distances of any house of worship.
This is an anti-harassment decision, not a repression of speech decision. Approach to ten feet (or 101 feet from the entrance) and say whatever you wish. The scope is so narrow so as to barely infringe upon the speech. There is a fairly bright line between saying words that may cause offense (whether holocaust denial, anti-abortion speech, or racist words) and directed speech that is tantamount to verbal assault.
Except that, as you well know, were there any actual molestation involved, the statute would have been unneccesary as the protesters would have already violated other penal code sections.
Moreover, the anti-harassment logic might be more compelling if the statute proscribed harassment. It does not, it proscribes speech and the distribution of printed materials in a specified area.
Um, yes it does. You're kidding, right? Please tell me you're kidding.
Perhaps, but see the first amendment: "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."
If speech was meant to include written words, why write "or abridging the freedom of speech, or of the press"?
That seems to indicate that they did not think freedom of speech included written words, and so they gave written words separate protection.
Without getting into an elaborate philosophical debate about plain meaning, the term "speech" in the first amendment was understood by virtually everyone to include written words, sign language, and other forms of alphanumeric communication.
It's not as though a state could stop you from saying "f*ck" if you wrote it, but not if you said it.
Is the offense 1)stomping on the word that means "god," 2)stomping on the Arabic word for "god," or 3)stomping on the Arabic word for "god" written in Arabic letters?
Would it be OK to stomp on a quarter a dollar bill? They, too, contains the word "god," but is written in English. How about a crucifix, cross, menorah, or statue of Vishnu?
except that allah in arabic is not alphanumeric
I ran across this somewhere:
"Tyrants understand that until free speech is successfully suppressed they cannot get on with suppressing everything else. The Islamic fanatics understand this as tyrants in the recent past understood it."
"However, if the proper way to speak to congress was also to show up naked, covered in chocolate sauce then she would have a case. Your analogy was not analogous because you failed to address the undisputed fact that the conduct/speech in question and the proper disposal of a flag both involve the burning of the flag--and therefore the only difference is the message/speech involved."
Clayton Cramer was just addressing "the currently popular notion that all expressive conduct is free speech protected by the First Amendment." He finds such a notion to be "ridiculous," and his example is designed to highlight that ridiculousness.
This raises a question for me. Has their been any work, academic or otherwise, on heckler's veto, applied to the current Islamist threat to free speech (e.g. the Danish cartoon controversy)? The current war on terror and the dangers of the spread of radical Islam may require some reexamination about the censorability of speech which may incite violence.
Professor Volokh's hypotheticals are therefore interesting but inapplicable to my theory because, if there is no rational basis to regulate the speech/conduct, then there is no basis for SFSU to punish in the first place, whether it be an American flag, a confederate flag, etc.
Then again, if the responses to my earlier comments are any indication, I may simply be a single lunatic on the fringes of the debate.
Yes, if this was the situation we could expect the legislature to have wildly inconsistent regulations on non-language expression. But maybe having a more focused law would give us a more consistent judicial interpretation. (Yes, I'm probably being naive.)
While I would be against most (all?) laws against non-language expression, I consider them a relatively inconsequential infringement on liberty compared to laws against the use of language. It would be worth living without constitutional protection for them if we could have clearer, more consistent constitutional protection for the use of language. (My wife teaches preschool and is forever having to tell the savage little tykes to "use your words" when they adopt rather more direct forms of expression. Many adults would be wise to heed the admonition.)
Let's not turn this into a semantic argument. It's a classic time/place/manner restriction and the legitimate governmental purpose is clearly to prevent speech that is intended to harass in these particular locations, without muddying the waters by forcing individual enforcement to decide what is and is not harassment.
It is not particularly different than a statute preventing similar conduct (protest/leaflet/etc.) within a reasonable radius of a cemetary (which has the significant effect of chilling certain types of war protestation, and contrary to Scalia's supposition, would likely be held constitutional as well).
The restriction is de minimus, unless the purpose of the speech is coercive or harassing. It's not as if there are not many other forums which are just as effective for communication (such as 101 feet away from the entrance within any distance of the target or 9 feet from the person within the 100 foot zone).
Kennedy's dissent is particularly disingenuous in his example of a person caught in an untenable situation when attempting to get out of the way of the 8 foot zone and approaching another person. Firstly, there is no statutory requirement to get out of the way at all (once must approach to be in violation). Secondly, even if there was such a requirement, the protestor incidentally displaying a sign to person B while evading person A would not satisfy the element of intent.
Um, yes it does. You're kidding, right?
Please tell me you're kidding."
I don't support a law forbidding burning the flag of the US or any other country. I think it is political speech and should be protected. But, that is the law in some countries: OK to burn ones own flag but not a foreign flag. Incitement to war. I don't support it in the internet age but I can see some logic to it (as a relic of WWII, maybe).
So you think that the Constitution shouldn't protect sit-ins, silent marches, boycotts, or cartoons/caricatures. Interesting.
I wonder if I could sit in the cafeteria at SFSU and have a conversation at normal volume with the other folks at my table about Islam, Mexico, or Latvia. Suppose someone came and sat at the other end of the table and took offense at what I said? Would my cafeteria diplomacy interfere with the state department?
That sounds like a threat! LOL!
This is not that sort of situation. When the intent is clearly to make a political statement in a public forum (rather than to intimidate isolated members of a minority group), flag burning, stomping and waving should be fully protected, regardless of the flag.
In this particular case, I would welcome the University taking every step to make a clear statement that it abhors this act by the College Republicans, that it in no way shares the views this act is meant to express, but that it stands by the notion that a free and fair exchange of ideas is essential to the functioning of the University and democracy, and as such it will take no offical steps to sanction the organization.
Really? Would you also welcome the University making statements that it abhors acts by student organizations trampling, say, Nazi banners, the Confederate flag? If not, why do the murderers at Hamas and Hezbollah merit such tender solicitude?
A University, while not prohibiting such speech or invoking sanctions against those who do it, should do its best to encourage its students toward political speech that is more clear, more detailed, more considered. In short, it should publicly distance itself from speech that is ambiguous, unclear, offensive while proudly standing for the right of its students to express those notions. For indeed, the only way such notions get improved is for them to be honed through more public discourse.
A constant stance of "we do not as a University endorse the views of our students or student organizations, but we proudly stand by their right to engage these ideas in public" is their best stance.