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Expressive Conduct:

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?

llamasex (mail) (www):
I think its cut and dry that College Republicans can stomp on whatever inanitmate object they want, but does speed need to voilate the first admendment in order for adminstrative 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.
2.8.2007 12:42pm
llamasex (mail) (www):
Damn lack of an edit button!

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.
2.8.2007 12:44pm
David M. Nieporent (www):
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.
The question is backwards. "Speech" never violates the first amendment. The first amendment bans (most) rules against speech; it doesn't ban speech.

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.
2.8.2007 12:48pm
Steve:
I think flag burning is protected speech, but I respect the opinion of those who think it's a special case. Maybe Austria shouldn't criminalize Holocaust denial, but I don't think it makes them a fascist state for doing so, and it hasn't opened the floodgates to dozens upon dozens of further exceptions to free speech.

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.
2.8.2007 12:55pm
llamasex (mail) (www):
David, I would think since College Republicans are an artificial creation by the school the school can put extra restrictions on them they want. For example parties are legal(WOOO!), but if a frat throws too wild of a party (but still within the bounds of the law) they can get put double secret probation for such a thing.
2.8.2007 12:56pm
Bill Poser (mail) (www):
Steve,

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.
2.8.2007 1:03pm
Nathan Jones (mail):
... it seems that the easy out is that the SFSU Republicans damaged someone else's property and should be punished as vandals....

The Confederate flag example is more difficult for the anti-flag burning crowd. I'd focus on that.

-nj
2.8.2007 1:03pm
Nathan Jones (mail):
nevermind: i misread the OP.

I second the need for an "edit button".
2.8.2007 1:05pm
Steve:
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.

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.
2.8.2007 1:09pm
BruceM (mail) (www):
I don't encounter too many people who say flag burning is not protected because it's not speech; rather, they say it's speech but you should be estopped from claiming First Amendment protection when you're desicrating the symbol of the country the Constitution establishes. And I certainly see the hypocrisy in burning an american flag and then claiming protection of America's laws. And deep down inside, I don't think the first amendment should protect patently hypocritical speech of any kind (especially religious speech). But no court has yet agreed with me on that theory.

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.
2.8.2007 1:13pm
HokiePundit (0L) (mail):
Again, assuming no other factors (like a SFSU rule "thou shalt not stomp on butcher paper whilst on campus"), it seems as though the only way to punish the CRs would be to say that what they did constituted "fighting words." If you support a ban on flag-burning under that idea, I guess it works. Other than that, I can only think of something like "disturbing the peace," and if it were done on campus during the day, that's probably not the case.
2.8.2007 1:24pm
jvarisco (www):
I think perhaps the intention is relevant here. If the intention is to intimidate a particular group (e.g. burning a cross), that seems like it could be excluded. Burning a flag is not exactly nice, but it's quite unlikely to threaten anyone. This may not be the case here, but seems possible.

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.
2.8.2007 1:25pm
Bill Sommerfeld (www):
Those who seek sanctions against the College Republicans should direct their ire first against Hezbollah and Hamas: they put "allah" on the flag in the first place.
2.8.2007 1:26pm
Seamus (mail):
I hear there are people out there who say it's an "urban legend" that soldiers returning from Vietnam were spat on in the 60s and early 70s. I think we ought to criminalize Vietnam spit denial as a form of hate crime.
2.8.2007 1:29pm
Seamus (mail):
The Confederate flag example is more difficult for the anti-flag burning crowd.

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.
2.8.2007 1:31pm
Spitzer:
Why isn't flag burning treated as constitutionally similar to cross burning? The latter is not fully protected, as the Court has upheld presumptions of intimidation which defeats speech protections. Obviously one can make sound arguments about the special, and terrible, history of cross burning, but that special history alone shouldn't prevent a government from creating a "presumption of intimidation" with respect to flag burning as well.
2.8.2007 1:32pm
tbaugh (mail):
But of course flag burning can be prosecuted not under a "flag-burning" prohibition, but a law or ordinance of general operation. In most urbn communities "open burning" is not permitted (try burning your leaves these days). Defending a prosecution for open burning for burning a flag on the ground that it's protected speech wouldn't get you any farther, I don't think, then defending a prosecution for opening burning for burning your leaves on the ground that it was protected speech in that you were expressing a hatred of leaves (or pick your sentiment).
2.8.2007 1:33pm
Rattan (mail):
Reminds me of the painter Hussain from India who apparently is still in exile (from India in response to threats to his life) after painting some Hindu goddesses in the nude. Gods and Nations should usually be tough enough to take care of their own affairs without ordinary mortals having to come to their (and their images') rescue.

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.
2.8.2007 1:33pm
Waldensian (mail):
I think flag burning has always been a pretty easy First Amendment case. If you want to criminalize it, amend the Constitution.
2.8.2007 1:49pm
CJColucci:
This discussion has a hidden assumption that ought to be brought out and discussed. The First Amendment would surely prevent criminal prosecution or prior restraint of this behavior on campus, just as it would off-campus. But is a public university disabled from insisting on standards of conduct and decorum on campus so long as the conduct in question isn't a matter for the police (or maybe the fire department or EPA)? Can a public university require, for example, standards of polite behavior on campus that the general government cannot insist upon from the general citizenry. I do not know the answer to this question, and it is not at all obvious, but an implicit answer to this question is lurking under the discussion.
2.8.2007 1:51pm
Barry P. (mail):
I don't see flag burning as a speech-rights issue, but a property rights issue. That is, if I purchased the flag, then I have the natural right to use and/or dispose of it in any way as I see fit.

If somebody else's feelings are hurt by my exercise of my property rights, well, too bad for him. Get a thicker skin.
2.8.2007 1:57pm
Some2L:
Professor Volokh,

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
2.8.2007 1:59pm
Seamus (mail):
For the record, I don't think flag burning should be protected, because the first amendment does not cover treason.

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).
2.8.2007 1:59pm
Solid State (mail):
Steve,

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
2.8.2007 2:08pm
Seamus (mail):
Obviously one can make sound arguments about the special, and terrible, history of cross burning, but that special history alone shouldn't prevent a government from creating a "presumption of intimidation" with respect to flag burning as well.

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****r patriot, get back in your place or get out of town."
2.8.2007 2:08pm
CrosbyBird:
And I don't think there is any serious harm to banning the conduct. (flagburning)

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.
2.8.2007 2:12pm
Steve:
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?

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.
2.8.2007 2:14pm
Seamus (mail):
an ordinance prohibiting loud noises at night in a residential area could be used against the use of loudspeakers at 11 p.m.

Speaking of loudspeakers and SFSU, I hope everyone remembers the late President (and later U.S. Senator) S.I. Hayakawa.
2.8.2007 2:14pm
Eric James Stone (mail) (www):
In response to an earlier post, I commented that "types of conduct that are primarily used to convey a message are more deserving of First Amendment protection than other types of conduct."

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.)
2.8.2007 2:18pm
2L:
This is what I've never understood about criminalizing flag burning:

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?
2.8.2007 2:22pm
Chris Bell (mail):
Solid State:

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.
2.8.2007 2:25pm
Barry P. (mail):
CrosbyBird: a small correction: O'Connor ripped up a picture of the Pope, she didn't burn it.
2.8.2007 2:26pm
CrosbyBird:
CrosbyBird: a small correction: O'Connor ripped up a picture of the Pope, she didn't burn it.

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.
2.8.2007 2:30pm
PeterII (mail):

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.
2.8.2007 2:31pm
Scote (mail):
How can people not see flag burning as speech? People are offended by the message of disrespect it sends.

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.
2.8.2007 2:33pm
SeaLawyer:
What is the message people are trying to send when they burn the flag?
2.8.2007 2:36pm
PersonFromPorlock:
Academic conservatives/libertarians are too willing to be put upon. SFSU is in violation of 18 USC 241: put a Dean in federal prison and change history.
2.8.2007 2:37pm
MS (mail):
I'm struck by the comments so far. Very few who would criminalize flag burning have taken up the challenge posed by EV's thought experiment. Instead, they have retreated to constitutional theories so doctrinally strained --- sedition, treason, "my gut," property rights, and "patently hypocritical speech" --- that they reveal the writers as non-lawyers. Which is a blessing to writer and reader, but which raises this question: Why are so many ignoring EV's hypotheticals? You are squandering a chance to tease out your intuitions on this subject free of the doctrinal constraints of lawyer-technocrats.
2.8.2007 2:39pm
Steve:
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?

I can easily imagine living for centuries without ever once becoming confused over this distinction. Is it really that hard?
2.8.2007 2:40pm
Brian G (mail) (www):
These students did indeed create a hostile environment for doing something that they knew would outrage and upset hypocrite leftists who stand for the First Amendment when those rights are used to spout the usual leftist liberal nonsense.

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.
2.8.2007 2:42pm
Barry P. (mail):
MS: I think I was the only one making a property rights argument, and I was arguing (strenuously) against criminalizing it. Restated: I have a right to burn[*] my own possessions.

[* 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]
2.8.2007 2:49pm
2L:
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.

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.
2.8.2007 2:51pm
MS (mail):
Brian G,

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.
2.8.2007 2:53pm
David M. Nieporent (www):
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.
And in France, a retired general (Paul Aussaresses) was prosecuted for "justifying torture" -- not for any torture itself -- because in his memoirs about the war in Algeria, he didn't express remorse about having engaged in torture.

Oh, there's a slippery slope.
2.8.2007 2:54pm
Elliot Reed:
MS - absolutely. I must say that the conduct argument is particularly incoherent because no proposed ban on flagburning is a conduct-based ban. Flagburning can be a patriotic act in which the flag owner demonstrates respect for the flag and support for the government by burning the flag rather than throwing it away. In fact the vast majority of flagburnings are of this type. Every proposed ban on flagburning would ban only those flagburnings that send a disapproved message. That's a content ban, not a conduct ban.

Sealawyer:
What is the message people are trying to send when they burn the flag?
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.
2.8.2007 2:56pm
MS (mail):
Barry P,

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.
2.8.2007 3:01pm
NickM (mail) (www):
I'm not one whom Eugene's question was directed to (I think the Supreme Court was right in Johnson v. Texas, but I wanted to separately note that the university has apparently jumped on board with the "no denigration of religion" group.
Quoting Debra Saunders' column of today:

The university's response? Spokesperson Ellen Griffin told me, "The university stands behind this process."

And: "I don't believe the complaint is about the desecration of the flag. I believe that the complaint is the desecration of Allah."



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
2.8.2007 3:01pm
Kovarsky (mail):
Is San Francisco a public university? These kids are idiots and third rate provocateurs. It's certainly covered speech though. I sympathize with those defending a right to peacably express any idea no matter how loathesome, but perhaps those who endorse the idea the protest apparently expresses - fuck muslims everywhere - should probably aspire to the body of cultural understanding possessed by your average fifth grader.
2.8.2007 3:02pm
HJA:
Eugene,

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.
2.8.2007 3:07pm
Christopher Cooke (mail):
Bruce, you forgot, the speech was also directed against Hezbollah. And yes, stepping on the flags clearly was "speech;" obviously the students who are upset with the College Republicans are only upset because of the message that stepping on the flags represented to them.

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.
2.8.2007 3:10pm
Houston Lawyer:
I think we have reached the point where those who claim to be provoked by political stunts like this should be asked to leave the university. They are clearly too narrow minded and intolerant to be educated there.
2.8.2007 3:12pm
The River Temoc (mail):
There is a lot of good legal talent on this board. How about we do an amicus brief to put SFSU in its place?
2.8.2007 3:18pm
Aaron:
BruceM

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)).
2.8.2007 3:24pm
Rattan (mail):
I did respond to EV's question. Allah (and other Gods)should be left alone to decide what vengeance to visit on the stompers without having humans to do the dirty work. Gods do have far more options at their disposal (thunderbolts, sickness, accidents etc.) than do poor humans who risk retribution, ridicule, jail, death or restitution assessed against them. This is the correct public policy.

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.
2.8.2007 3:25pm
Eric James Stone (mail) (www):

I must say that the conduct argument is particularly incoherent because no proposed ban on flagburning is a conduct-based ban. Flagburning can be a patriotic act in which the flag owner demonstrates respect for the flag and support for the government by burning the flag rather than throwing it away. In fact the vast majority of flagburnings are of this type. Every proposed ban on flagburning would ban only those flagburnings that send a disapproved message. That's a content ban, not a conduct ban.

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.
2.8.2007 3:30pm
Randy R. (mail):
"What is the message people are trying to send when they burn the flag?"

How about: Woe to those who wrap themselves in it.
2.8.2007 3:30pm
Pantapon Rose (mail):
Steve, would the case in France against the newspaper that published the Danish Islam cartoons for "publicly offending a group of persons on the basis of their religion" represent the slippery slope to you?
2.8.2007 3:30pm
Dave R (mail):
Should there be a law against burning a copy of the Constitution? Unlike the flag, it is not a symbol. If burning the flag was illegal, would that lead to the creation of 51 star or 14 stripe flags, call them protest flags, specifically to loop hole the law?
2.8.2007 3:32pm
JK:
Houston Lawyer,
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."
2.8.2007 3:32pm
Some2L:

I'm struck by the comments so far. Very few who would criminalize flag burning have taken up the challenge posed by EV's thought experiment. Instead, they have retreated to constitutional theories so doctrinally strained --- sedition, treason, "my gut," property rights, and "patently hypocritical speech" --- that they reveal the writers as non-lawyers. Which is a blessing to writer and reader, but which raises this question: Why are so many ignoring EV's hypotheticals? You are squandering a chance to tease out your intuitions on this subject free of the doctrinal constraints of lawyer-technocrats.


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.
2.8.2007 3:37pm
Jason J. (mail):
If people hate America then they should just say so.

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.
2.8.2007 3:39pm
Bill Poser (mail) (www):
Proposed bans on burning the flag are content-based because: (a) the reasons given for the ban are ALWAYS content-based; and (b) no proponent of the ban proposes to extend it to the disposal of the flag. In other words, it is precisely when burning the flag constitutes speech that it is proposed to ban it. The fact that under the same statute you wouldn't be prosecuted for directly stating the same sort of criticism doesn't mean that the ban is not content-based - it just shows that there are other factors at play as well. Possibilities include the idea that it may be possible to pass off a ban on flag-burning as not being a ban on speech and the idea that a ban on flag-burning can more readily be made narrow and so get by people who would otherwise object to censorship.
2.8.2007 3:40pm
msk (mail):
In 1993, some Republicans in Kentucky burned Hlllary Clinton in effigy (presumably making sure the effigy was not wearing flag petticoats). Now we have these kids hoping to get a video clip of their childish nonsense aired on al Jazeera.

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.
2.8.2007 3:40pm
James Ellis (mail):
Just a thought: what if we had a federal law requiring all american flags to be made out of especially flame retardant materials. Would such a law survive a first amendment challenge?
2.8.2007 3:41pm
Steve:
Steve, would the case in France against the newspaper that published the Danish Islam cartoons for "publicly offending a group of persons on the basis of their religion" represent the slippery slope to you?

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.
2.8.2007 3:44pm
tbaugh (mail):
Aaron:

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).
2.8.2007 3:57pm
JosephSlater (mail):
As a couple of posters have already said, there's a significant difference between the types of speech which the First Amendment generally prohibits government from banning, and the type of speech a public institution (a public employer, a public school, e.g.) can limit for certain folks (public employees, public school students, e.g.).

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).
2.8.2007 4:03pm
Richard S (mail):
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.

Are there any cases from the era about such things? They did burn effigies. Was that considered protected?
2.8.2007 4:15pm
Clayton E. Cramer (mail) (www):
I think it is a serious mistake to criminalize flag burning. People that do that manage to enrage most Americans so much that they fail to accomplish anything but what leftist agitators like to do most: make themselves feel superior while spending Daddy's millions.

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.)
2.8.2007 4:16pm
Dick King:
tbaugh, yes, with the thickness of the law books these days it's hard to move or act without violating some obscure ordinance or other, but the penalty is usually minor. I suspect that people who burn flags at protests wouldn't mind paying that little $25 fine or whatever penalty applies to such minor offenses.

-dk
2.8.2007 4:19pm
Pantapon Rose (mail):
Steve, you made this comment:
"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.
2.8.2007 4:26pm
_:
Clayton, its good to see you dont let your political stereotypes get in the way of legal reasoning.


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.
2.8.2007 4:30pm
DRJ (mail):
Professor Volokh,

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.
2.8.2007 4:38pm
Seamus (mail):

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.



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?
2.8.2007 4:39pm
Nick H.:
Academic conservatives/libertarians are too willing to be put upon. SFSU is in violation of 18 USC 241: put a Dean in federal prison and change history.

This is a brilliant suggestion.

BTW, DMN/CrosbyBird, how many other BBTFers are around here (someone has already registered 'cabbage' here at Volokh!).
2.8.2007 4:45pm
Scote (mail):
Clayton E. Cramer writes;

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.


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.
2.8.2007 4:49pm
Mark Field (mail):

BTW, DMN/CrosbyBird, how many other BBTFers are around here (someone has already registered 'cabbage' here at Volokh!).


There's me, though I stopped posting at BBTF a while ago.
2.8.2007 4:50pm
Ed W. (mail):
Flag burning, cross burning, stepping on Muslim flags et. al. are terribly offensive.

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?
2.8.2007 4:56pm
Eugene Volokh (www):
DRJ: Virginia v. Black makes clear that cross-burning may be banned in those contexts where it is intended to and likely to convey a threat of violent action (but not other contexts).

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.
2.8.2007 5:14pm
Elliot Reed:
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.
Isn't this a classic time, place, and manner regulation? It would be a quite different if it were legal to show up in chocolate sauce to express a message of support for the government, but illegal to do it to express a message of opposition to the government. Which is exactly what proposed flag-burning laws are about, since burning a flag would be banned only when it expresses a message of opposition to the government. Burning a flag as a display of patriotism and respect for the government and the flag would remain legal (and that's the vast majority of flag-burnings).
2.8.2007 5:17pm
abb3w:
As a liberal/libertarian, I see little problem (aside from bad manners) with the actual conduct in question; public condemnation by prominent authority figures might be the most extreme action allowable, although if an administrator could think of a more polite but equally effective method for the students to express themselves, it certainly ought to be suggested.

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.
2.8.2007 5:19pm
Kovarsky (mail):
Richard S.,

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.
2.8.2007 5:28pm
Kovarsky (mail):
Clayton,

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.
2.8.2007 5:29pm
Mike Keenan:
Isn't it illegal in some countries to burn the flag of foreign countries (Japan where I have spent a lot of time comes to mind)? Hamas and Hezbollah are not countries, but it doesn't seem completely unreasonable to forbid citizens from insulting other nations (on the pretext of not engaging in foreign policy?)
2.8.2007 5:40pm
CrosbyBird:
it doesn't seem completely unreasonable to forbid citizens from insulting other nations

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.
2.8.2007 5:52pm
The Red Menace (mail):
Should I presume that the posters here insisting that freedom from offense is nonsense, were shocked at the manner in which Hill v. Colorado was decided?
2.8.2007 6:07pm
CrosbyBird:
Should I presume that the posters here insisting that freedom from offense is nonsense, were shocked at the manner in which Hill v. Colorado was decided?

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.
2.8.2007 6:44pm
The Red Menace (mail):
the speech is presented in such as way as to present an obstacle to someone obtaining legal health services

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.
2.8.2007 7:22pm
Waldensian (mail):

it doesn't seem completely unreasonable to forbid citizens from insulting other nations

Um, yes it does. You're kidding, right? Please tell me you're kidding.
2.8.2007 7:46pm
Richard S (mail):
"They obviously meant something beyond the strictest definition of "speech," because written words were always considered protected."

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.
2.8.2007 7:46pm
Elliot Reed:
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.
Another fascinating blow for expressio unius est exclusio alterius in its neverending battle against ejusdem generis.
2.8.2007 7:54pm
Kovarsky (mail):
Richard S./Elliot,

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.
2.8.2007 10:02pm
Elliot123 (mail):
The offense in question is stomping on a flag inscribed with the Arabic letters for Allah. Allah is simply the Arabic word for "god." Would it also be an offense to stomp on the letters forming the English word "god?" How about Deus? Gott? Kami?

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?
2.8.2007 10:56pm
Lev:
Kovarsky


other forms of alphanumeric communication


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."
2.8.2007 11:48pm
Hans Gruber:
Scote wrote:

"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.
2.9.2007 12:40am
Hans Gruber:
"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."

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.
2.9.2007 12:56am
Falafalafocus (mail):
I have been one of the critics of the argument in favor of flag burning as speech. However, my argument has been that there is no basis under the police power to regulate the activity and therefore there is no need do decide whether flag burning is speech.

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.
2.9.2007 9:49am
Bob R (mail):
If I had a magic wand and could rewrite history, I would extend constitutional protection only to the use of language, and exclude other forms of expression. I realize this is not the case under existing law, and I'm not arguing that it is the proper interpretation of the first amendment. I'm simply arguing that it would be the clearest and most politically stable and helpful form of the law. While I think that most laws against non-language forms of expression are silly, I don't think they are materially harmful to rational political discourse, which is what the first amendment is designed to protects. The current case law puts us in the embarrassing position of having a law that protects nude dancing and flag burning but not advocating the election of a political candidate 60 days before an election.

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.)
2.9.2007 10:06am
CrosbyBird:
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.

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.
2.9.2007 10:23am
Mike Keenan:
"it doesn't seem completely unreasonable to forbid citizens from insulting other nations

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).
2.9.2007 10:38am
james (mail):
It is my understanding that flag burning is protected speech (United States v. Eichaman). This would seem to inlude flag desecration in general. San Francisco State University (SFSU) is a state university. As such, it can not legaly ban the speech content of flag desecration.
2.9.2007 10:42am
Aaron:
Bob R

So you think that the Constitution shouldn't protect sit-ins, silent marches, boycotts, or cartoons/caricatures. Interesting.
2.9.2007 11:04am
Elliot123 (mail):
"it doesn't seem completely unreasonable to forbid citizens from insulting other nations"

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?
2.9.2007 12:14pm
wuzzagrunt (mail):
"What is the message people are trying to send when they burn the flag?"

*******************************

How about: Woe to those who wrap themselves in it. (Randy R.)


That sounds like a threat! LOL!
2.9.2007 12:48pm
Joe Gator (mail):
Hypothetical about cross-burning....Suppose a group like the Klan wanted to protest affirmative action or illegal immigration or something like that, and they met in front of a government building and burnt a cross. Would this be speech entitled to protection?
2.9.2007 2:21pm
dll111:
In regards to the flag burning as positive and patriotic vs. flag burning as negative and protest, I always wondered about words deemed obscene when used in one sense, but not when used in another. Why aren't those content based restrictions? I think the answer is because the SCt has decided that they aren't "speech" and so aren't protected by the 1st Am., but that seems like an unprincipled cop out. If the word is allowed when it means one thing but not when it means another, shouldn't that be a content-based restriction that's unconstitutional?
2.9.2007 2:22pm
Barry P. (mail):
Bob R.: The argument would simply migrate from "what is speech?" to "what is language?" Language is a form of communication, and the First Amendment, at its core, is about protecting the ability to communicate one's thoughts to others. A language is only one of many possible sets of symbols used for communication, and it strikes me as absurd for a court to get into the task of deciding which symbols and methods of communication qualify as "language" and which do not.
2.9.2007 2:31pm
Chimaxx (mail):
I think there could be instances when burning a flag would amount to the kind of intimidation covered under the cross-burning exceptions (e.g., burning an Israeli flag on the front porch of the only Jewish family in town; burning the Hamas or Hezbollah flag at the entrance the Muslim Student Group).

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.
2.9.2007 4:47pm
Seamus (mail):
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

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?
2.9.2007 6:27pm
Chimaxx (mail):
Actually, that gets to the point of why flag burning and flag trampling is not a particularly EFFECTIVE form of speech. Some observers seriously took their meaning as an affront to all of Islam. While burning or trampling the Nazi flag is pretty unambiguous, the meaning of doing so to the Confederate flag is not so much so. It is clear that by this act they meant to express something, and as such, their expressive conduct should be protected as speech.

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.
2.9.2007 7:36pm