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March 01, 2005

Comments

Certainly one of your more balanced posts on this subject, Charles, although it gets a bit melodramatic toward the end.

Last week, the immigration minister expelled three imams from the al Fourkaan mosque, a veritable terrorist hub, and they were ordered to return to their respective homelands (Bosnia, Egypt and Kenya).

This is the right approach, IMO. As staunch an advocate as I am for immigrants' rights, I still believe non-citizens should be on probation until they demonstrate they want to live in their new country the way it generally is (except where discrimination against them is concerned obsiously). Hateful, treacherous speech about their new home or actions designed to undermine the society as it exists through nonlegislated methods should be squashed like bugs. Reasonable people can agree on what is hateful speech and dangerous actions in a way that protects immigrants who are merely being themselves.

I watched a Dutch Muslim immigrant on PBS argue that it's OK for Iraqi insurgents to target Dutch military sites in Holland in response to the invasion. I would have deported his sorry ass in a heartbeat. I dont' even care that one could argue he has a point, in a twisted logic sort of way...he's an ungracious guest and doesn't deserve the hospitality his host has shown him. His words were dangerous and he's a threat to all around him, including other Muslims.

I've been in Muslim homes. This form of spitting on hospitality is so very far from Muslim culture (which remains one of the most stunning generous and gracious cultures I've ever encountered) this idiot and the others like him should be hounded by their own for misrepresenting them.

"Well, she lived like a German, didn't she?"

That about sums it up. Some immigrants do not come to Germany/Denmark to become Germans.

...he's an ungracious guest and doesn't deserve the hospitality his host has shown him.

You know, I think this sums up what the vast majority of people feel (in the US at least) about immigration. More than happy to have immigrants come; but are ready to hold them to very strict standards.

Sadly, what little debate that happens about immigration these days are between the competing extremist camps of "don't let anybody in and kick everyone out" and the "let everyone in and don't kick anyone out for any reason."

Edward,

I watched a Dutch Muslim immigrant on PBS argue that it's OK for Iraqi insurgents to target Dutch military sites in Holland in response to the invasion. I would have deported his sorry ass in a heartbeat.

Unfortunately you can't do that. I think that issue is in the same ballpark as burning the flag, inviting speakers with links to terrorist organizations to speak on college campuses, etc.

More than happy to have immigrants come; but are ready to hold them to very strict standards.

I don't think they standards are strict at all. Some immigrants march against the imperialist/evil/murderious US.. Why come here, then?

Stan,

"I watched a Dutch Muslim immigrant on PBS argue that it's OK for Iraqi insurgents to target Dutch military sites in Holland in response to the invasion. I would have deported his sorry ass in a heartbeat.

Unfortunately you can't do that. I think that issue is in the same ballpark as burning the flag, inviting speakers with links to terrorist organizations to speak on college campuses, etc."

Pardon? Do you really believe that burning the flag is equivalent to advocating attacks on military sites?

Maybe you can tell me what burning the flag is all about?

"Maybe you can tell me what burning the flag is all about?"

I asked you first. Nonetheless, I think it is a political statement of opposition to the country's policies (i.e., a type of speech protected by the Constitution). It is not an attempt to physically attack military assets.

Dantheman,

I am confused. Isn't this:

I watched a Dutch Muslim immigrant on PBS argue that it's OK for Iraqi insurgents to target Dutch military sites in Holland in response to the invasion

in fact a

political statement of opposition to the country's policies (i.e., a type of speech protected by the Constitution). It is not an attempt to physically attack military assets.?

Besides, how does the flag signify policies? The flag is the symbol of our country, not a particular administration or party.

"I am confused. Isn't this:

I watched a Dutch Muslim immigrant on PBS argue that it's OK for Iraqi insurgents to target Dutch military sites in Holland in response to the invasion

in fact a

political statement of opposition to the country's policies (i.e., a type of speech protected by the Constitution)."

No, it's not. If you think so, and cannot see the difference between politcal statements and support for violence, you are truly confused.

Waaaaaaait a second. His statement is protected by the first amendment is it not? You also didn't explain what flag burning is all about.

"Waaaaaaait a second. His statement is protected by the first amendment is it not?"

No, advocacy of violence is not protected by the First Amendment.

"You also didn't explain what flag burning is all about."

You also haven't answered my first question. Your turn.

No, advocacy of violence is not protected by the First Amendment.

Well, flag-burning certainly isn't speech; how on Earth could it be protected by the First?

No, advocacy of violence is not protected by the First Amendment.

I am even more confused then! According to you, the people who carries this vile sign - "We support our troops when they shoot their officers" could've been arrested... But they weren't. Yet, cops were all over the place during the march. What gives?

You also haven't answered my first question. Your turn.

Ok, I'll play along. I think that it takes an extremist to burn our flag. And once you are dealing with extremists, don't be surprised if their self expression comes out via violence.

Now your turn. Explain the flag burning.

"flag-burning certainly isn't speech"

The Supreme Court respectfully disagrees.

You'll have to ask the Supreme Court, Slarti, since they seem to have settled the issue.

Also, watch out for tar-babies, Dan.

"Next door in Germany, there are similar problems."

I think this is just a coincidence. And, really, 13-year-olds say a lot of dumb things.

Advocacy of violence is rightfully not protected by the First Admendment. Flag-burning, on the other hand, should be. You're really talking chalk and cheese here.

Flag burning is a symbolic gesture as old as flags themselves connoting passionate discontent. It's very vagueness however prevents it from suggesting a particular, illegal action. It provides the public with a method to scream without hitting. It's very useful and should remain legal. I've never done it, but am glad it's there because without it, the hitting becomes much more likely. It's meant to offend, so it's dangerous in that respect, but it's a far cry above other physical methods of expressing outrage.

"According to you, the people who carries this vile sign - "We support our troops when they shoot their officers" could've been arrested... But they weren't. Yet, cops were all over the place during the march. What gives?"

I don't know, but I would not have objected to them being arrested.

"I think that it takes an extremist to burn our flag. And once you are dealing with extremists, don't be surprised if their self expression comes out via violence."

So once somebody performs (admittedly offensive) anti-government protected symbolic speech, there are no steps between that and violence? That doesn't seem to fit. I would be very surprised to see any overlap in the last decade or 2 between the categories of flag burners and people who attacked government property (I suspect we would need to go back to the Berrigan brothers to find such an overlap).

On the flag burning question, when one reads interviews with people who do burn flags, that is uniformly what they state their intent was -- to protest some specific policy.

I don't know, but I would not have objected to them being arrested.

That's not the point, though. I think we need to ask von as to why those folks werent' arrested, when according to you they should've been.

I would be very surprised to see any overlap in the last decade or 2 between the categories of flag burners and people who attacked government property

I don't know... Everytime there's some kind of a lefty march where flag burning is involved there's always property damage.

On the flag burning question, when one reads interviews with people who do burn flags, that is uniformly what they state their intent was -- to protest some specific policy.

Yea, like the policy of being a capitalistic society.

Advocacy of violence is rightfully not protected by the First Admendment.

Lawyers - help me make sure I'm not completely wrong. My understanding is advocacy of violence is protected by the First Amendment, i.e. "It would be a very good thing indeed if someone beat the crap out of Jonas Cord and others like him." Incitement to violence is not protected, i.e. "There's Jonas Cord coming out of that bar! Beat the crap out of him!"

You'll have to ask the Supreme Court, Slarti, since they seem to have settled the issue.

They have? Cool; it's only a matter of time before taking a dump on the Supreme Court steps will be protected as speech.

"Everytime there's some kind of a lefty march where flag burning is involved there's always property damage."

And what percentage of right-wing or non-partisan political marches are free from property damange?

"On the flag burning question, when one reads interviews with people who do burn flags, that is uniformly what they state their intent was -- to protest some specific policy.

Yea, like the policy of being a capitalistic society."

Examples of this, and not other, more specific policies, please.

They have? Cool; it's only a matter of time before taking a dump on the Supreme Court steps will be protected as speech.

Again, take it up with them. For my part, I'll just regard it as settled law. Did you need me to refer you to the case in question, or did you have a point to make, or . . .?

Stan, could you be a sweetie and provide me no fewer than five cites from people who have burned flags and did so specifically to protest the United States (or whatever country whose flag the burned) being capitalist? Thanks ever so much. See, otherwise I have to assume you're just making shit up.

No, I've seen it. Let's clarify, then. Burning a flag may be protected as free speech, but it is not, literally, speech. Why SCOTUS chose to interpret any particular action that's verifiably NOT speech as being protected by a free-speech provision is a mystery for lawyers to solve.

Edward, Dantheman

Flag burning is a symbolic gesture as old as flags themselves connoting passionate discontent.

Not familiar with folks in other countries burning their flags as a form of political expression. Could probably put flag burners into the "useful idiots' file.

And what percentage of right-wing or non-partisan political marches are free from property damange?

Well, anytime there's some kind of a lefty march, starbucks/mcdonalds either stay closed or get their windows smashed in. What about right wingers? What kind of damage have you heard about?

"...verifiably NOT speech as being protected by a free-speech provision is a mystery for lawyers to solve."

I sense....wait, it's becoming clearer...yes, it's a penumbra!

I don't like mimes either.

At a guess, Slarti (and it is just a guess) flag-burning is protected under the First Amendment because art is considered to be protected under the First Amendment: Robert Mapplethorpe's photographs, for example, while verifiably not speech, receive First Amendment protection in the US. Further, the First Amendment is specifically intended to protect political free speech.

If flag-burning as part of a political protest is not a form of performance art, and hence protected under the First Amendment, it can certainly be considered a form of political communication, which is also protected under the First Amendment.

Did this undo that?

Out, damned blockquote!

Stan, could you be a sweetie and provide me no fewer than five cites from people who have burned flags and did so specifically to protest the United States (or whatever country whose flag the burned) being capitalist? Thanks ever so much. See, otherwise I have to assume you're just making shit up.

Ah! I made some shit up in my head, that all those nice folks who burned the flag in the lefty demonstrations of the last 2 years were socialists/communists/stalinists. But if your claim is that flag burning is distributed pretty evenly amongst communists/socialists/stalinists and moderate lefties, then I stand corrected.

Flag burning is a symbolic gesture as old as flags themselves connoting passionate discontent.



But of your own country???? Give me a break! If Kucinich or Nader got elected, I highly doubt that anyone on the right would be burning the flag.

Lots of things that aren't literally speech are protected, Slarti, as you well know. Wearing black armbands in school to protest the Vietnam War. Keeping religious paraphernelia on your desk at work. Plenty of other examples that don't spring immediately to mind.

If we're going to limit "speech" to, literally, written or oral person-to-person communications, that pretty much leaves music, movies and the rest of the arts unprotected, too.

BTW, it's worth pointing out to Stan that, in the one flag-burning incident that pops to mind for me, a woman burning a flag as part of a protest against the US-led bombing in Kosovo was assaulted and beaten by two nearby observers. So it does lead to violence, just not the kind he thinks. She was also arrested for flag burning, long after the Court had already ruled on this matter. To my recollection, her assailants were not.

And seeing Stan's response while I preview, no cites are forthcoming from Our Stan, meaning he is, indeed, just making shit up. I knew it, I just wanted to see him prove it.

Not familiar with folks in other countries burning their flags as a form of political expression.

The old, I don't know about it so it can't be true argument, eh?

Read this.

You do have a point that burning one's own flag is a relatively new political gesture, but so is free speech.

And seeing Stan's response while I preview, no cites are forthcoming from Our Stan, meaning he is, indeed, just making shit up. I knew it, I just wanted to see him prove it.

Like I said. I stand corrected. The people who burn the flag during lefty demonstrations represent all shades of the left - not just the fringe, as I assumed prior. Thanks for clearing that one up.

Why SCOTUS chose to interpret any particular action that's verifiably NOT speech as being protected by a free-speech provision is a mystery for lawyers to solve.

I can't speak for the SCOTUS, but from my perspective, speech=communication. To try to interpret it narrowly and literally as "speech" invites a number of truly absurd consequences, such as the FA not protecting someone who can only use sign language, or a digital display mounted on a wheelchair. Or, for that matter, the written word.

The FA does, however protect these things, because the "speech" in "free speech" means the freedom to communicate an idea. Words do not, by making sound or taking up space on paper, mean anything--they mean something because we have decided that they are symbols that represent an idea. We also recognize that words are not the only way that ideas can be conveyed, which is why art is protected by the FA, as well as certain symbolic acts clearly intended as messages or protests in and of themselves.

This does not mean that society cannot put constraints on communication when deemed necessary. This is why death threats are illegal, as is conspiracy to commit a crime, the bombing of an abortion clinic to make a political statement, and libel. These are all cases where we have judged that the value of this speech is far outweighed by the irreparable harm it does to individuals and society.

But offensive or no, I have yet to see an argument that convinces me burning a flag in protest does any such irreparable harm to society.

"Like I said. I stand corrected. The people who burn the flag during lefty demonstrations represent all shades of the left - not just the fringe, as I assumed prior. Thanks for clearing that one up."

Yawn. Repeating an offensive irrelevant comment does not add to its truthfulness.

Phil,

BTW, it's worth pointing out to Stan that, in the one flag-burning incident that pops to mind for me, a woman burning a flag as part of a protest against the US-led bombing in Kosovo was assaulted and beaten by two nearby observers. So it does lead to violence, just not the kind he thinks.

Ok. That's 1. How about 4 more cites to prove that assertion, sweetie? I think you're making shit up, but I'll wait for you to prove me right.

Dantheman,

Hey, if the shoe fits...

Phil would like no fewer then 5 cites to prove that statement as an incorrect one.

This thread is going down hill very quickly...class it up a bit gents.

"Maybe you can tell me what burning the flag is all about?"

Sure. It's a gesticular form of saying "f**k" to some American policy or piece of history or set of politicians. It's precisely the equivalent of, and as dangerous as, giving the finger to the President when he drives by. We don't make speech illegal in this country merely because it is offensive. Thank the Founders. (Jefferson loses points because of the Alien & Sedition Acts.)

Tangentially, we don't give non-citizens precisely the same set of rights as citizens.

"Well, flag-burning certainly isn't speech; how on Earth could it be protected by the First?"

Because "speech" isn't "oral statements," Slart; it's communication. Please consider that deaf people using sign language are engaged in "speech." So are we all when we engage in facial expression, and gesticulate in any fashion, and when we write, which isn't "speech" if "speech" means "oral communication only."

"They have? Cool; it's only a matter of time before taking a dump on the Supreme Court steps will be protected as speech."

If it didn't otherwise violate sanitation laws, it would be; since we have such laws, your nose is safe.

Really, should, for instance, giving the finger to the President also be illegal, along with deaf people telling him what they think? Along with making signs and writing what we think?

Probably not?

It's crucial to remember that, in law, we have principles and precedents and terms of art, which means you can't take a streetwise version of an expression and insist that that's the only meaning courts can put on a word; that would require tossing out our entire system of law. This would actually be a worse notion than it might appear at first glance.

And, no, I don't find either flag-burning or finger-giving particularly informative or helpful or impressive speech, but, then, neither is what is written on a lot of blogs, and we don't have freedom of speech only for insightful communication.

"(Jefferson loses points because of the Alien & Sedition Acts.)"

Jefferson loses points for objecting to them, but Adams doesn't for signing them into law? What gives?

Gary,

Sure. It's a gesticular form of saying "f**k" to some American policy or piece of history or set of politicians. It's precisely the equivalent of, and as dangerous as, giving the finger to the President when he drives by.

But finger to the president I understand. The flag, however, is not a symbol of any particular administration or party. I simply can not imagine my feelings toward the flag change if, let's say, Kucinich/Nader were in the White House.

Stan,

Forgive me, if this seems offensive...I do it only to try and illustrate what I think you're missing.

What if the US changed its policy and became hostile toward Israel? Could you see yourself burning a flag in protest then?

I suppose Jefferson could lose points for not pushing to have the Alien and Sedition Acts repealed, instead of just letting them expire, but I think that's unfair, especially since I think Congress had a Federalist majority at the time.

Forgive me, if this seems offensive...I do it only to try and illustrate what I think you're missing.

None taken, but I thought my reference to Kucinich/Nader already covered the point you're trying to make here? :)

What if the US changed its policy and became hostile toward Israel? Could you see yourself burning a flag in protest then?

No. And we can speak in more general terms. I love this country, and if the man in the White House pushed through *any* policy with which I disagreed - my beef would be with him and his party. Not my country or its flag.

That's what I don't get. If you hate Bush and you think that he's un-American, then where exactly does burning of the American flag fit in?

If you hate Bush and you think that he's un-American, then where exactly does burning of the American flag fit in?

Never having burned a flag, I can't speak from experience, but there are groups who feel so disenfranchised or outraged I can't see denying them that gesture to express their frustration.

My question is, with so little flag burning going on anyway, what difference does it make? Being against it oneself is fine. Legislating against it is patriotic grandstanding for its own sake in my book. When the odd person feels it's the only gesture they can make to express their feelings, let them do it. They'll be unpopular enough that they'll reconsider doing it again, but that too should be something they're free to find out on their own, legally.

then where exactly does burning of the American flag fit in?

An expression of contempt showing how far Bush & Co have perverted and trashed the ideals by which the US was founded?

Again, just a guess. I have no flag in this fight.

When the odd person feels it's the only gesture they can make to express their feelings, let them do it.



Neh... I think it's only one of the ways they express their feelings.

And, no, I don't find either flag-burning or finger-giving particularly informative or helpful or impressive speech, but, then, neither is what is written on a lot of blogs, and we don't have freedom of speech only for insightful communication.

Right, this is where I'd propose to Gary if gay marriage weren't illegal in most states.

Seriously, have you considered your own blog?

Oh, wait.

Jes,

An expression of contempt showing how far Bush & Co have perverted and trashed the ideals by which the US was founded?

Again. Given that the flag is not a symbol of Bush or the evil Republicans, how does burning it show contempt for the current president & GOP? How does trashing the flag help? It's the very same flag that was being used when Clinton was in the White House, and it's the same flag we are going to use if (G-d forbid) the candidate you'll root for in 2008 wins.

"Neh... I think it's only one of the ways they express their feelings."

You've said so before. You just haven't given examples of flag burners then being more likely to destroy other property when asked to.

Stan: Given that the flag is not a symbol of Bush or the evil Republicans, how does burning it show contempt for the current president & GOP?

As a piece of performance art, to show symbolically what Bush & Co are doing to the US. Makes thematic sense to me.

And, really, 13-year-olds say a lot of dumb things.

I have a 13-year old, and I can attest to that. However, I would not find it surprising that an authority figure had immersed that 13-year old in that sort of vile thinking.

Phil and Stan, speaking of speech, please refrain from the kind that contains profanity.

Jes,

I've, actually, never heard of that one. Usually the reasoning behind burning the flag is something this.

Stan: I've, actually, never heard of that one.

*shrug* I'm making it up as I go along.

Usually the reasoning behind burning the flag is something this.

Well, if you already knew, why ask me to guess?

I'm still ahead of you 1-0 in cites, Stan, so I'll just wait for you to catch up. I'm sure you have some proof that everyone who ever burns a flag is a Communist and is protesting the United States being capitalist; I'm just eagerly waiting to see it, because I know, from experience, how elegant and thorough and well-thought-out said proof will be.

Flag burning is, as far as I'm concerned, an expressive act. What it expresses would presumably depend on context and intention. I think it should be protected as such. I don't have any answer to Stan's question, 'how does burning the flag help?', since I think it's a vile form of expression. (I also don't have any good answer to such questions as: how does giving a neo-Nazi speech help?', since I can't think of anything that would be helped by the addition of a neo-Nazi speech.) But then, I don't interpret the Constitution as protecting only helpful expression.

I also think that construing people who burn flags as necessarily having a coherent anti-American ideology, as opposed to being more ordinary jerks, is a mistake. Some of them are probably just out for attention. Similarly, I suspect that some people get into neo-Nazi groups because they're in one of those adolescent moments in which you actually want to be offensive to the people around you, and Nazism is just the most offensive thing that leaps to mind. Obviously, you'd have to be a real jerk to be willing to advocate the death of lots of people just to prove how offensive you can be, but then, some people are real jerks. Likewise, you'd have to be a jerk to burn a flag in order to be offensive, but some people are.

In the final analysis, I see the danger to what our country stands for that would come from banning flag-burning as greater than the danger that comes from allowing a few idiots to do it, especially since I have seen no evidence that there is a rash of flag-burning under way, and since any attempt to proscribe it would have to rely on some general principle that might apply more broadly. I do not particularly want to turn over to the government the power to regulate political expression except on the grounds of the time, place, and manner of its exercise (e.g., if I choose to express myself with a megaphone right under your bedroom window at 4am, I can be charged with disturbing the peace, and the fact that I was stating a political view is irrelevant.)

"Jefferson loses points for objecting to them, but Adams doesn't for signing them into law? What gives?"

My memory. Sorry. Thanks for the catch.

"The flag, however, is not a symbol of any particular administration or party."

Things are symbols of whatever we imagine they are; we don't get to determine what a symbol means to another person. The flag certainly can and has stood in, at times, for some people, as a symbol for the acts of a particular Administration, or a particular set of acts by America.

And, yes, absolutely, most of the time it stands simply for America. It is, and must not be, illegal to be anti-American (because if it is, it's only the people in power who will get to determine who is in violation; do you want a theoretical, I dunno, President Hillary Clinton, or President Al Sharpton, or President Noam Chomsky, or whichever bogeyman of the right one might hold to have such power?). The answer to anti-American speech is the same answer to all offensive speech: speech rebutting it. Speech hauling the issue into the cleansing light of public regard and consideration and mockery and argument.

Like, you know, you're doing here.

" Neh... I think it's only one of the ways they express their feelings."

So what? On that sort of logic, anyone whose blog comment expresses their "feelings" in a way you don't like should be subject to arrest? Flag-burning is intended to offend people: so what? Should being offended be grounds for making speech illegal? Flag-burning is saying "I hate America." I think America can survive that; I think America stands for, if anything, the right to say what we think, however stupid and offensive; surely you agree? I mean, you don't hate our Constitution and Bill of Rights, right? You don't stand against our freedom, I'm sure. To hate the Bill of Rights is to hate America. What are you, some bin Laden supporter? Well, if so, I for one, am not going to stand around and listen while someone expresses hatred of America!

:-)

"You just haven't given examples of flag burners then being more likely to destroy other property when asked to."

It wouldn't matter if he gave a hundred examples. We don't have a principle of jurisprudence in this country that gives the government the right to lock up people because of what they are likely to do.

Oh, wait, sorry, that was kinda old-fashioned of me. Sorry.

But we still don't have such a principle established, really. Hamdi.

The point is, being a seedy person whom is likely to commit a crime isn't, in itself, against the law, and never should be. We have this weird idea that we should wait until people actually at least conspire to commit a crime before we lock them up, and saying what you think, however repellent your opinion is, however hating-America it is, isn't, and shouldn't be, a crime (because, again, only humans will administer it, including potentially the people you distrust most). We believe in the rights of the individual and our right to protect ourself, legally, against the depredations of our government, right?

I mean, only some commie left-winger believes in the government over the people, and not vice versa!

:-)

"It's the very same flag that was being used when Clinton was in the White House, and it's the same flag we are going to use if (G-d forbid) the candidate you'll root for in 2008 wins."

Exactly. We stand for protecting your right to protest our awful choice of government.

"No, I've seen it. Let's clarify, then. Burning a flag may be protected as free speech, but it is not, literally, speech. Why SCOTUS chose to interpret any particular action that's verifiably NOT speech as being protected by a free-speech provision is a mystery for lawyers to solve."

I am, quite literally, not speaking right now. I am writing. A painting is literally not speech. A photograph is literally not speech. The images in a film are literally not speech. The visual part of a political cartoon is literally not speech. Thinking is literally not speech. Reading whatever book I want to is literally not speech. Donating money to a political organization or candidate is literally not speech. Registering as a Democrat or a Republican is literally not speech. Silence is literally not speech. Refusing to fly the flag or take a loyalty oath is literally not speech. Flying the flag of this or any country is literally not speech. Having your newspaper sent through the U.S. mail is literally not speech. Having your words amplified is literally not speech.

On the other hand, instructing an assassin to kill someone may be, literally, speech. Telling a terrorist how to build a chemical weapon is, literally, speech. Committing fraud often is done through, literally, speech. Soliciting a prostitute is done, literally, through speech. All of those crimes may be committed ONLY through the use of speech.

Is it really such a mystery why the Supreme Court believed it was the first category, and not the second, that the First Amendment is intended to protect?

"I also don't have any good answer to such questions as: how does giving a neo-Nazi speech help?'"

I sure do: we can't protect our own free speech with protecting everyone's free speech. If you give me the right to make your speech illegal, I have given you the right to make my speech illegal. Either speech is protected, or it isn't; if only ideologically-correct speech is legal, none of us has free speech.

You can't be half-free.

So giving a neo-Nazi, a communist, an Islamic hater-of-the-West, and every loony there is, free speech, protects you and me and us all. That helps.

And, of course, don't forget the Supreme Court's famous ruling in Sticks-&-Stones v. America.

Okay, I might have my rulings a bit confused.

"It is, and must not be, illegal to be anti-American...."

In case anyone isn't clear, by the way, that doesn't mean we have to extend citizenship to every or any anti-American non-citizen; citizenship is not a right.

Committing fraud often is done through, literally, speech.

I'm fairly sure that's not true. Can't you commit fraud by lying about your particulars on a form?

As a side note, I've never understood what's so offensive about flag-burning. Then again, I never understood what's so special about a flag, either. It's a scrap of cloth, that's all; a symbol of a nation, true, but in the end it's nothing more than the symbol of the thing and not the thing itself. So what if one is destroyed? Other symbols still exist -- and even if they didn't, the Platonic idea of the symbol survives -- and my faith in my country is strong enough to survive that one churlish blow.

Committing fraud often is done through, literally, speech.

I'm fairly sure that's not true.

Emphasis mine.

"Other symbols still exist -- and even if they didn't, the Platonic idea of the symbol survives -- and my faith in my country is strong enough to survive that one churlish blow."

No, no, the map is the territory!

And if anyone argues, I have this voodoo doll.... (Because I love that voo that you do so well.)

Ah, Gary, sorry: I inadvertently gave rise to one of those eats shoots and leaves moments. When I wrote: "I also don't have any good answer to such questions as: how does giving a neo-Nazi speech help?'", what I meant was: suppose you were to stand up and give a speech (stemwinder, oration, whatever) in which you expressed neo-Nazi views, how would that help anything? (To parallel Stan's: "how would burning a flag help?) To which my answer was: well, I can't see that either would help much of anything; so what?

But I didn't mean: how would it help to give a neo-Nazi (the right to) speech? I agree with your answer to that question.

I said "often" not "only". Certainly it can be.

And I forgot perjury and slander.

I said "often" not "only". Certainly it can be.

Yeah, I just misread. Sorry about that.

No, no, the map is the territory!

That's a really big map! And once you opened it up, it got real dark all of a sudden...

Since we're discussing Texas v. Johnson (1989):

(a) Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent. Pp. 402-406.

[...]

The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the government may not permit designated symbols to be used to communicate a limited set of messages. Moreover, this Court will not create an exception to these principles protected by the First Amendment for the American flag alone.

Because once you start making exceptions in what's free speech, there's no free speech.

[...]

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 420. REHNQUIST, C. J., filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p. 421. STEVENS, J., filed a dissenting opinion, post, p. 436. That radical Scalia....

Slart, if you like, you and anyone else can read the arguments as to what is "speech" and "expressive conduct" there; I forbear quoting for fear someone won't like that.

Burning a flag is an act, not a form of speech. Yes, I know the USSC has a different opinion. If some dork wants to express his hatred for America, exhaling words out of his mouth or moving his fingers on a keyboard or crafting a protest sign should do the trick. It's not like burning a flag is a fella's only recourse in elucidating hate for his country.

"If some dork wants to express his hatred for America, exhaling words out of his mouth or moving his fingers on a keyboard or crafting a protest sign should do the trick. It's not like burning a flag is a fella's only recourse in elucidating hate for his country."

Logically, therefore, if the only scrutiny necessary is your proposed "it's not the only recourse available" test, then absolutely any words at all, and specific choice of phrase, may Constitutionally banned by any legislature under the same precise principle.

We can pass a law to make saying "f**k the President" a crime, because the President is the elected leader of our nation, one of the only two elected representatives of all the people, the Supreme Commander of our Armed Forces, and the man (so far) who speaks for our country to the world. As such, we can find it intolerable that such a disrespectful term can be legally uttered, and since it's not the only available alternative, we can make it a crime, under your precedent.

Why not?

And then we can make any other speech we want illegal, so long as we leave a single good alternative -- or a few, if you prefer! -- available.

And then we make it mandatory to wear underwear on the outside. All will be well.

Bird Dog: whatever happened to the conservatism I used to know and love, in which people favored limited government?

Oh, and Bird Dog?

"Burning a flag is an act, not a form of speech."

Can you explain to me how it is that if burning the flag is not "expressive conduct" -- if it is not communicating any idea -- how it can offend? And if it is about communicating an idea -- an idea that happens to offend -- how is it that it should be consistent with the principle of free speech to make communicating an idea illegal?

This is, by the way, the reasoning of the decision, if you bother to read it and the majority opinion. (Naturally, you'll want to adopt Rehnquist's dissent, perhaps; just trying to be helpful here.)

The Court of Criminal Appeals began by recognizing that Johnson's conduct was symbolic speech protected by the First Amendment: "Given the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellant's act would have understood the message that appellant intended to convey. The act for which appellant was convicted was clearly `speech' contemplated by the First Amendment." Id., at 95. To justify Johnson's conviction for engaging in symbolic speech, the State asserted two interests: preserving the flag as a symbol of national unity and preventing breaches of the peace. The Court of Criminal Appeals held that neither interest supported his conviction. [491 U.S. 397, 401]

[...]

Johnson was convicted of flag desecration for burning the flag rather than for uttering insulting words.2 This fact [491 U.S. 397, 403] somewhat complicates our consideration of his conviction under the First Amendment. We must first determine whether Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction.

[...]

The First Amendment literally forbids the abridgment only of "speech," but we have long recognized that its protection does not end at the spoken or written word. While we have rejected "the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea," United States v. O'Brien, supra, at 376, we have acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments," Spence, supra, at 409.

In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether "[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it." 418 U.S., at 410-411. Hence, we have recognized the expressive nature of students' wearing of black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505 (1969); of a sit-in by blacks in a "whites only" area to protest segregation, Brown v. Louisiana, 383 U.S. 131, 141-142 (1966); of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam, Schacht v. United States, 398 U.S. 58 (1970); and of picketing about a wide variety of causes, see, e. g., Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 313-314 (1968); United States v. Grace, 461 U.S. 171, 176 (1983).

Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. Attaching a peace sign to the flag, Spence, supra, at 409-410; refusing to salute the flag, Barnette, 319 U.S., at 632; and displaying a red flag, Stromberg v. California, 283 U.S. 359, [491 U.S. 397, 405] 368-369 (1931), we have held, all may find shelter under the First Amendment. See also Smith v. Goguen, 415 U.S. 566, 588 (1974) (WHITE, J., concurring in judgment) (treating flag "contemptuously" by wearing pants with small flag sewn into their seat is expressive conduct). That we have had little difficulty identifying an expressive element in conduct relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol of our country; it is, one might say, "the one visible manifestation of two hundred years of nationhood." Id., at 603 (REHNQUIST, J., dissenting). Thus, we have observed:

"[T]he flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design." Barnette, supra, at 632.

Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in "America."

We have not automatically concluded, however, that any action taken with respect to our flag is expressive. Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred. In Spence, for example, we emphasized that Spence's taping of a peace sign to his flag was "roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy." 418 U.S., at 410. The State of Washington had conceded, in fact, that Spence's conduct was a form of communication, and we stated that "the State's concession is inevitable on this record." Id., at 409.

The State of Texas conceded for purposes of its oral argument in this case that Johnson's conduct was expressive conduct, Tr. of Oral Arg. 4, and this concession seems to us as [491 U.S. 397, 406] prudent as was Washington's in Spence. Johnson burned an American flag as part - indeed, as the culmination - of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. At his trial, Johnson explained his reasons for burning the flag as follows: "The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn't have been made at that time. It's quite a just position [juxtaposition]. We had new patriotism and no patriotism." 5 Record 656. In these circumstances, Johnson's burning of the flag was conduct "sufficiently imbued with elements of communication," Spence, 418 U.S., at 409, to implicate the First Amendment.

And there we are. Now, if you want to argue with this, please be specific which part you take issue with, if you would be so kind.

Bird Dog: whatever happened to the conservatism I used to know and love, in which people favored limited government?

I'm all for limited government, hilzoy, but I have reservations about libertarian government, particularly the variety some of the libertarian purists prefer.

Gary, my test isn't other recourses, my test is actual speech. We have all kinds of laws restricting all kinds of behaviors, so one that restricts putting a match to a flag is just one more. Like I said, my opinion differs from that of the courts.

I'm no libertarian, Bird Dog, but I do quite like the First Amendment.

Bird Dog: "Like I said, my opinion differs from that of the courts."

Me said: "And there we are. Now, if you want to argue with this, please be specific which part you take issue with, if you would be so kind."

Naturally, there's no obligation, and you may not feel so kind, but I, for one, would find it enlightening if you responded favorably to this request. Your blanket "I disagree with the courts" is uninformative to those of us who don't know what your reasoning is. Ya never know, you might persuade some of us you are correct.

"Gary, my test isn't other recourses, my test is actual speech."

Previously: "If some dork wants to express his hatred for America, exhaling words out of his mouth or moving his fingers on a keyboard or crafting a protest sign should do the trick. It's not like burning a flag is a fella's only recourse in elucidating hate for his country."

What did you mean by this if this wasn't your reasoning? Okay, never mind, I'll take it as withdrawn as your offered justification.

A second query: do you then feel that the First Amendment does not protect written words, artwork, motion pictures, people using sign language, and people thumbing their nose at the President? It's Constitutional to pass laws against any and all such acts? If not, why not?

hilzoy,

I don't have any answer to Stan's question, 'how does burning the flag help?', since I think it's a vile form of expression. (I also don't have any good answer to such questions as: how does giving a neo-Nazi speech help?', since I can't think of anything that would be helped by the addition of a neo-Nazi speech.)

Well, Neo-Nazi speech would help (or attempt to, anyway) in advancing the neo-Nazi agenda. What I've been trying to find out, through out this whole thread, is agenda behind flag burning.

Phil,

I'm still ahead of you 1-0 in cites, Stan, so I'll just wait for you to catch up.

Not able to meet your own standards, pumpkin? Come on, sweetie, you said "no fewer than five cites".

You can probably find at least five here.

Jes,

Well, if you already knew, why ask me to guess?

Well, you did say something I have not considered.

Re 13-year-olds saying (no doubt evilly-indoctrinated evilness): note that it is possible to find people saying anything, no matter how unlikely. E.g., via unfogged: a kitten claims "Jews slander Hitler again." Happily that's not our kitten.

It's a shame this thread has gone off on a tangent about flag-burning, because I'm actually doing a paper on the subject of Islam in Europe and was curious what kind of solution Charles or others think there is to the situation going on in Denmark here — assuming there even might be one. Selective deportation? Mandatory ethics classes for students? Political semi-autonomy for Muslim enclaves? White flight? Something else entirely? Just wondering what people's thoughts on this were, if the thread hasn't been irrevocably turned aside from the original topic.

Uh, I meant Holland, not Denmark, of course.

Deportation of whom? Citizens? Illegals? Legal non citizens?

because I'm actually doing a paper on the subject of Islam in Europe and was curious what kind of solution Charles or others think there is to the situation going on in Denmark here — assuming there even might be one

[sarcasm]Kill them all, let God sort them out. ;-([/sarcasm]

Chef -- I think you just doused the flag flame with a bit of reality.

The correct way to dispose of a flag in the event it becomes damaged or otherwise unusable is to burn it.

Since it is not this kind of flag burning which is sought to be outlawed, but the kind which expresses discontent with the government, we can only infer that it is not the actual act of burning a flag in itself which is sought to be outlawed. What is being legislated against is the reason for burning a flag; very literally, it is legislation seeking to outlaw protest against and disrespect for government. This cannot be allowed, because the first and fundamental principle and cornerstone of a free democracy is that one must be allowed to damn it to the skies from your soapbox if you want. Disrespect must be legal.

Personally, I wouldn't burn a flag in protest of anything, but that's because I don't happen to put much stock in flags as symbols of anything much, or burning as an effective method of protest. And, I have a visceral opposition to the malignant yet too-frequently-tolerated social cancer of nationalism such that I find wrapping oneself in a flag and using it to justify all manner of things, from simple thoughtlessness and bigotry to war, murder and rape, far more unpleasant than simply burning the fabric.

Someone else burning a flag of my country 'neither picks my pocket nor breaks my leg,' and I have faith in all the important and desirable parts of my government and culture that they will be able to survive the vicious onslaught. Since I do not believe in Voudou, witchcraft or any other hokum, there is no material attack being waged on any part of the government. Indeed, all things considered, I think if any part of the UK government is so fragile as to quiver every time someone sets a match to the Union Flag in protest over the price of tea, that part had better be subjected to governmental Darwinism as fast as possible, as it is obviously a pathetic liability to the rest of the system. In fact, it might be desirable to burn a whole pile of flags, see who amongst the government cries out as if in pain, and then have the lily-livered pantywaists in question forcibly removed from the premises.

I have a great deal of respect for the other Union across the pond, and have no doubts in my mind that it, too, shall continue to survive no matter how many squares of coloured fabric are burned in protest at this, that, or the other thing it does. It saddens me slightly that some of its citizens are not as secure in its own strength as I, a mere foreigner. Keep your chin up, Bird Dog. The USA is nearly a grown-up country, it will survive if people call it nasty names. You have to loosen the apron-strings at some point, you know.

MC: I think the reason for the silence on the actual topic may be that we have no idea. It is in my case, at least.

Why does this seem to be noticeably more of a problem in Europe than the U.S.?

As for the flag thing: if I were designing a college curriculum and was discussing what classes to make mandatory, Con Law would be #1 on the list. How are we supposed to make sure our elected leaders uphold the Constitution if none of us understand it?

I'm not saying that you need legal training to understand it, either--we had some fairly decent discussions about the big cases in high school. But most people first encounter a constitutional issue in a case where they have a clear idea of what they'd like the outcome to be, and they make totally outcome driven arguments that are frankly just not legally defensible.
(No, this isn't restricted to conservatives--it's really common on Kos too. Yes, "conduct not speech" is one of these. What can I say--five people have explained why this doesn't work, in a reasonable amount of detail and very clear language. See my 11:42 pm post for only one example. If you don't respond to a single one of our arguments, they're not going to take yours very seriously.)

What's worse than the easy demagoging of unpopular court decisions on faux-legal grounds, though, is that it's very, very easy for someone with a law degree to make a bad faith legal argument in a way that sounds authoritative and convincing to someone without legal training. When people read things like the "death or organ failure" standard or the arguments in Padilla or John Yoo stating that it's unconstitutional for Congress to forbid torture since it's "the core of the Commander-in-Chief power", and Republicans shrug their shoulders and say "he's the expert", we've got a problem.

mc_masterchef, there have been good discussions of the topic here - put "Holland" or "pillarization" etc. into the site search and you should get some useful threads.

Why is it more of a problem in Europe?

a) Proximity: We're closer, we get more Islamic immigration.

b) Nationalism, the Old Left and the Far Right: we're old peoples with long, tribal memories, and this means that in times of crisis a sizable fragment of the population will resort to the old chestnut of 'blaming other people' for the problems of the world, whatever the people or problems may be. Tensions between whatever the most recent immigrant group is in Europe and the reactionary elements are pretty much part of the furniture over here.

c) It actually looks worse from over there than it does from over here: strange but true. Similarly, you wouldn't believe how your government looks to people not versed in American politics right now. Look at it this way; Maher Arar was a terrible case, but most people in the USA go to work on an egg every day and the sky doesn't collapse on their heads. The same is true with these cases over here. The focusing and distorting nature of the media can present an idea of racial violence in Europe that is far removed from the reality. "99% of people absolutely fine" is a rubbish headline. C'est la vie.

Good morning...

Pardon my intrusion after having surfed in from a link referral on my website. I found the discussion about flag burning and First Amendment issue of great interest. But I also noted there was some concern about topic or thread creep. I try to be respectful of others so this will be brief. I'm the author of the page that shows the banner in a San Francisco "peace march" that touts killing American military officers. Should this topic surface again on it's own legs, please consider giving me a shout. Some very bright people seem to be communicating here. While really pressed for time, what you have to say, on both sides is important to me.

Dave Jenest, Webmaster
Patriot Defenders Network
Citizens Community Watch

I'm all for limited government, hilzoy, but I have reservations about libertarian government, particularly the variety some of the libertarian purists prefer.

That's funny -- just a week ago, you told me that the difference between real conservatives - like you - and faux conservatives like Pat Buchanan is that you real conservatives were libertarian on social and cultural issues. Huh. Guess not.

We have all kinds of laws restricting all kinds of behaviors, so one that restricts putting a match to a flag is just one more.

And one that restricts what color shirt you can wear would be one more. And one that restricts what TV programs you may watch would be one more. And one that restricts women from wearing pants would just be one more still! This is fun!

Stan,

"You can probably find at least five here."

Not really. In most cases, while the flag burner was described to be anti-capitalist, the reason for the flag burning was stated and was not to protest capitalism, but to make some other point. For example:

From the source of the second cite, "The protesters called for New Zealand troops to get out of Afghanistan and Iraq." (the first cite is from an anti-protest site which makes no attempt to discuss the reasons for the burning).

From the third cite, "In Hong Kong, two democracy activists were convicted of desecrating the Hong Kong and Chinese flags at a rally calling for the end of one-party rule in China." The anti-capitalist screed was in an entirely separate article on the same page.

The fourth cite gives no reasons, but the word Capitalist is part of the name of the blog.

You may have a point on the fifth cite, which lists as the reasons: "Every flag in this country is soiled - soiled by the blood of innocent Iraqi civilians, soiled by the needless bloodshed of soldiers in an illegal war, soiled by Imperialism and the capitalist greed that values profit over all life." Several different specific policies being protested here, as well as generic anti-capitalism.

From the sixth cite, "PAW is an organisation made up of different groups and individuals including members of the Ant-Capitalist Alliance (ACA) and has been one of the most active and militant anti-war groups in the country. PAW has continued to focus on and target Helen Clark and the Labour Government for their ongoing involvement in the ‘War on Terror’ and the war on Iraq."

The flaw in your logic is that just because a group is anti-capitalist, their act of flag burning is not necessarily to oppose capitalism. Or in other words, if an anti-capitalist eats breakfast, that does not make eating breakfast an anti-capitalist act.

Dantheman: Or in other words, if an anti-capitalist eats breakfast, that does not make eating breakfast an anti-capitalist act.

The devil you say! *eats lunch in a pointedly anti-capitalist manner*

Look, I realize that writing isn't literally "speech", but it is verbal communication. I also realize that there are aspects of this notion of protection of free expression that I hadn't considered, so I'm going to bow out of this discussion. Apologies for the threadjack; this wasn't so much about flag-burning for me as it was about what seemed to me an overly broad interpretation of the First.

Late to the game here, but this:

No, no, the map is the territory!

That's a really big map! And once you opened it up, it got real dark all of a sudden...

Reminded me of that Steven Wright line: "I have a map of the United States that is actual size. It says, 'One mile equals one mile.' When somebody asks where I live I say, 'E-14.' Last summer I folded it."

I'm no libertarian, Bird Dog, but I do quite like the First Amendment.

Me too, hil.

A second query: do you then feel that the First Amendment does not protect written words, artwork, motion pictures, people using sign language, and people thumbing their nose at the President? It's Constitutional to pass laws against any and all such acts? If not, why not?

Except for perhaps smoke signals, Gary, burning inanimate objects is a behavior, not a form of communication. Using your standards, I take it that you will stand fully behind me if I took a growler on the capitol steps, no?

Defacing public property and burning something that you own -- they're exactly the same!

Oh, wait -- they're not.

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