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  • Flag Burning today, the rest of the Bill of Rights tomorrow

       June 22, 2005

    I don't have a lot of time to post these days, as I'm hard at work studying to pass the New York Bar Exam, but I just had to take time out to highlight the stupidest comment I've read in a long, long time.

    It seems that the House of Representatives has approved an anti-flag desecration amendment, prompting Rep. Randy (Duke) Cunningham, R-Calif to assert:

    "Ask the men and women who stood on top of the (World) Trade Center ... [a]sk them and they will tell you: pass this amendment."

    Oh really, Randy? Well, by that "logic," (and I use the term very lightly) dog, I suppose you could also throw out "ask the men and women who stood on top of the World Trade Center - they'd say repeal the whole Bill of Rights," or maybe "ask the men and women who stood on top of the World Trade Center - they'd say drink Pepsi!"

    Randy, you're an idiot. Don't believe me? Just ask the people who stood on top of the World Trade Center on September 11th.

    America was attacked on September 11th by fanatics who hate the freedom for which she stands. She was attacked precisely because it's legal for one to express his mind in this great country. The people who stood on top of the World Trade Center on September 11th aren't calling out "make sure no one burns any flags!" They're screaming out "make sure no one crashes any more planes into any more buildings."

    "And keep standing tall."

    I like to think that the passage of this bill in the House is an example of Representatives casting a purely political vote - one that they consider "safe" because there is little chance of the bill passing the Senate and absolutely zero chance of it being ratified by the states. (If it does manage to pass the Senate, btw, that will be an example of just how broken our system of government is in the wake of the 17th Amendment.)

    Sadly, only 12 Republicans voted "Nay" That small honor roll is:

    Rep. Dreier (CA), Rep. Ehlers (MI), Rep. Flake (AZ), Rep. Gilchrest (MD), Rep Hoekstra (MI), Rep. Kolbe (AZ), Rep. Leach (IA), Rep. Paul, Rep. Petri (WI), Rep. Schwarz (MI), Rep. Shadegg (AZ), Rep. Shays (CT)

    3 from Arizona. 3 from Michigan. Maybe it's time I considered moving?

    As for the rest of you Republicans, and for you Democrats who crossed the aisle to cast a "yea" - shame on you. Shame on you for having no concept of individual liberty whatsoever.

    This isn't the Republican party I signed up for.


    Posted by jkhat at June 22, 2005 05:04 PM

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    Comments

    #  June 22nd, 2005 5:14 PM      james
    just looking at the distribution of nay votes, it may be time to look into coining the terms "arizona republican" or "michigan republican."  
     
    #  June 22nd, 2005 6:05 PM      ThatWouldBeMe
    Complete agreement, JK. And good luck on your exam.  
     
    #  June 22nd, 2005 11:14 PM      andrusk
    I like that idea too (seeing as how I am from arizona), but the problem that I see is that many people associate arizona with john mccain. And the list thing I want to be thought of is a "John Mccain" Republican. Maybe a "western republican"  
     
    #  June 23rd, 2005 1:32 AM      Daddy
    James, I think the pressure of the exam is starting to get to you.

    Flag-burning is NOT OK, post 9/11. I think it's better that the cops get to these liberal asshats before some passer-by decides that TODAY is the day he's gonna snap.

    Matter of fact, I would like to shake the hands of the 77 DEMOCRATS who crossed the aisle and (finally) did something pro-American--even if it is only symbolic.

    I just ain't with ya on this.
     
     
    #  June 23rd, 2005 7:25 AM      kris
    The fact that the House even debated and voted on this is the best example yet of why we only need part-time legislators. Clearly, there are no serious issues or problems in America if our elected officials have time for this crap.

    Of course flag burning should be legal. The 1st Amendment wasn't written or ratified lightly, you know.

    I think you're an asshole if you do burn the flag, but the day America outlaws being an asshole is the day I become an outlaw.  
     
    #  June 23rd, 2005 9:29 AM      BrianH
    This one is politics. Who's going to want to stand up and say "I voted NO to protecting the flag"? Or at least that's how their opponents will phrase it.

    I don't seriously think it'll make it through the Senate. If it does, Bush will probably sign it, but then it goes to the States to ratify it and it'll die there.

     
     
    #  June 23rd, 2005 9:56 AM      kris
    But, apparently, plenty of politicians want to stand up and proclaim "I voted NO to protecting the 1st Amendment!"  
     
    #  June 23rd, 2005 9:58 AM      kris
    I think it's worth nothing that a Wisconsinite (Petri) and a Texan (Paul) showed some sense on this one too.

    The rest of the party should be hanging their heads in shame  
     
    #  June 23rd, 2005 10:00 AM      JohnTant
    James, while I think there's a defensible argument on the side of pro-flag burning, I don't see it here.

    You're looking at it from a free speech perspective. But doesn't "speech" get regulated all the time? For example, copyright laws are an undeniable infringement of my free speech rights because they govern what I can say and under what circumstances. But isn't there a tradeoff in those laws, that the intellectual rights of one person trumps my free speech rights? How about censorship? It's not legal to show pornography on ABC, even if said porno carries a political message. I don't think many people here would be quick to say that prohibition should be lifted on free speech grounds, so in reality most of us are in favor of censorship...we just differ on the degree of censorship. So I guess what I'm getting at is a prohibition on flag burning is a degree of censorship but it isn't automatically wrong in and of itself AS censorship (unless a person is 100% against censorship in all forms...).

    I have my own concerns about this issue, mainly that using a constitutional amendment to prohibit flag burning seems like overkill (and using 9/11 imagery was out of bounds as well, in my opinion). But then those concerns are tempered by the actions of an imperial judiciary which I think led us up to this point. So while I agree that the specific issue of flag burning is trivial, the underlying issues are not.  
     
    #  June 23rd, 2005 10:48 AM      BrianH
    Yes, if the people who voted against the ammendment have any brains they'll be answering with the protection of free speech line.

    But I noticed most of the people who voted against the ammendment are also the people who cried openly about Koran desecrations. THAT would make a good attack ad: Video of Ted Kennedy whining about mishandling the Koran followed by a statement that he supports flag burning!

    I guess I'm starting to think too Rovian.
     
     
    #  June 23rd, 2005 12:20 PM      james
    john,

    commercial speech gets regulated all the time. it's much harder to regulate political speech, as political speech is intrinsic to our concepts of ordered liberty. the first amendment grants you almost unlimited political free speech rights. trademark law and copyright law restrict your commercial speech.

    non-obscene pornography is protected by the first amendment. that you can't show it on TV has nothing to do with constitutional speech rights and everything to do with what is and what is not allowed on TV - we the public own the airwaves, and we license the right to use them with certain conditions attached. you'll note that pornography *is* permitted on cable. the first amendment has nothing to do with it.

    what bothers the hell out of me is the hypocrisy involved here, on both sides - conservatives whine about how the liberals want to make it illegal to "offend" another person, yet at the same time want to outlaw flag burning solely because it offends them. liberals take the opposite tack and instead think that it should be considered "hate speech" to call someone a derogatory name, but think that if someone is offended by flag burning they should just suck it up. both groups let their hypocrisy shine through on this one.

    like kris said, i think that people that burn the flag are assholes, and they certainly deserve to be treated as such, but if it should be made illegal i predict i will find myself out in the street shoulder-to-shoulder with mbrlr lighting one up. making it illegal to burn the flag is akin to making it illegal to criticise the president. that isn't what america is about.

     
     
    #  June 23rd, 2005 1:43 PM      KVBigSis
    Excellent posts, James.  
     
    #  June 23rd, 2005 1:52 PM      JohnTant
    James, I'm in between meetings but I wanted to dash this off.

    SCOTUS ruled that regulating political speech was fine and dandy when they upheld CFR. Not that I agree with it, but the precedent is there. I also think the difference you draw between "political" speech and "commercial" speech is one of interpretation and not one that is cut and dried. A fellow can rip off a political essay from someone and will face the wrath of the law if he says it the wrong way.

    Vis a vis your examples, you say:

    that you can't show it on TV has nothing to do with constitutional speech rights and everything to do with what is and what is not allowed on TV - we the public own the airwaves, and we license the right to use them with certain conditions attached.


    And that's just what I'm talking about...we the public decide what goes on the airwaves, even in the cases of protected speech. We the public use the power of government to enforce that decision. So you concur that porno is protected speech, and yet government is saying you can't air it in certain situations. That's censorship. It's not *bad* censorship, but it's still dictating the circumstances under which someone can engage in protected speech.

    Look, two years ago SCOTUS upheld a Virginia law that made it illegal to burn crosses, even on private property. Their reasoning was that it was a form of terror and thus not protected speech. Well, how is burning an American flag somehow NOT considered a form of terror? To me the intent behind both actions are comparable. Yet one is illegal and one is protected.

    Now I'm not saying I necessarily think a prohibition on flag desecration should be enshrined in the Constitution (personally a burning flag doesn't incite me all that much), but I am saying I don't think the situation is as beyond the pale as your post might suggest. I think when SCOTUS ruled that flag-burning was protected speech, there's an argument that they went against the popular will in doing so. Well, what's the prescribed recourse for that? What's the check on SCOTUS? Yeah, a Constitutional Amendment.

    A few months ago I wrote in a post that the courts needed some kind of accountability for their decisions, that we can't adhere to the idea of representative democracy only part time. Well, is this proposed amendment not an expression of that will? Part of that whole representative democracy thing rests in dealing with the expressions we don't agree with (to me, THAT'S what America is about...). Didn't we expect it of the Left when President Bush was elected?  
     
    #  June 23rd, 2005 2:28 PM      kris
    I disagree with the Court decision about cross burning, but there's still a distinction to be made:

    Burning a cross is a protest against a particular religious or racial group, while burning a flag is specifically a protest against the government. I think that barring protests like that against the government ARE distinctly beyond the pale.  
     
    #  June 23rd, 2005 2:30 PM      Andrew
    Well said jkhat! The very fabric of this country is being ripped at the seams by those who want to make flag burning illegal. I don't think any one should ever burn the US flag. Because we live in a great country. And the reason it's a great country? Because people can burn the flag if they wanted too. Because they can speak their minds. I don't know what Republican Party you signed up for, but the one you've got right now is a perversion of the one that Abraham Lincoln once worked in. It's a perversion and it's perverting our democracy. This nonsensical jinoism is ruining what makes us great, it's anti-thought, and it's anti-progressive. And of course, I'll note that it's Progressive Values that have made this country great. Whether it was ending slavery, bringing down Jim Crow, winning women the vote, creating environmental protection, creating Social Security, or inspiring the Bill of Rights and the end of European fascism.
    Personally, I think you should change parties. But you better stay. It's nice to have some intelligent Republicans out there.

    With respect from the other aisle,

    Andrew  
     
    #  June 23rd, 2005 2:30 PM      james
    It's not bad censorship, but it's still dictating the circumstances under which someone can engage in protected speech.


    first, im not talking about "censorship" at all. we're talking about protected and non-protected speech. what's on television has absolutely nothing to do with what is protected and what isnt.

    second, what youre saying isnt even true. the "censorship" is dictating what the guy running the camera and the network can and cant put on TV. it has nothing at all to do with what the actor can or cant do or say.

    the case youre talking about is va v. black, and you omit an important part of the holding. the court upheld a VA law that outlawed cross burning done _with the intent to intimidate or terrorize_. the court was clear when they said that a law outlawing cross burning would be unconstitutional. you can still burn crosses in VA, you jsut cant do it with an intent to terrorize someone. similarly, you also dont have the right to make verbal threats to people. verbal threats arent protected speech, either.

    the entire point of the bill of rights is to insure that the majority doesnt trample the rights of the minority. you're espousing a formulation that seems to champion an interpretation directly contrary to that. 95% of the peopel in this country might think that child molestors should be tarred and feathered, then tortured for the rest of their lives, but that doesnt give the "majority" a right to impose their will on others.


     
     
    #  June 23rd, 2005 2:32 PM      BVBigBro
    If a muslim fundametalist, supporting an islamic state in the US, were to burn a flag, is this not a protest against other religions and racial groups?  
     
    #  June 23rd, 2005 2:37 PM      nate78
    I am currently serving in the Air Force and I have a similar outlook to most of you. While I was attending a class with ROTC cadets before commissioning, I was asked to debate the side for banning the burning of the flag while the other cadet was against the ban. I researched hard and long for a good reason to quash this form of expression, but it left me unconvinced. I debated the best I could and felt that to many, I would be convincing, but I was not to 35 cadets. Most in that room expressed that a ban would be a slap in the face for those who would risk their lives to defend our freedoms.
    I have a neighbor who smokes while pregnant. That is much more offensive to me because an innocent life is at risk. Who is at risk because of a flag burning?  
     
    #  June 23rd, 2005 2:38 PM      kris
    No, BV, it's still a protest against a form of government that allows people to worship as they please.  
     
    #  June 23rd, 2005 2:42 PM      BVBigBro
    So all we need do is pass an ordinance outlawing flag burning within, say 2500 feet of a church?  
     
    #  June 23rd, 2005 2:44 PM      kris
    Well, like I said...I disagree with the Cross burning laws too. They punish thought, which doesn't make sense to me. How can burning a cross be okay if I don't mean to "terrorize" someone, but not okay if I do? That's just stupid. All those hate speech laws are stupid.  
     
    #  June 23rd, 2005 2:53 PM      ThatWouldBeMe
    Just for the record, US Code, Title 4, Chapter 1, Section 8.k:

    http://www4.law.cornell.edu/uscode/html/uscode04/usc_sec_04_00000008----000-.html

    "The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning."

    Also:
    http://www.miningjournal.net/areaphotos/story/0615202005_aph02-a0615.asp
    Are this Boy Scout and this American Legion veteran now criminals?  
     
    #  June 23rd, 2005 2:53 PM      james
    kris, it's also illegal for you to say to someone "yo, blacky, im gonna kill you." that's a threat. think of cross burning as a threat.

    as for the rest, i'll have to catch up on the arguments later - i'm out until monday. peace!


     
     
    #  June 23rd, 2005 2:59 PM      kris
    but it's still legal for me to be an asshole, right?  
     
    #  June 23rd, 2005 3:05 PM      JohnTant
    first, im not talking about "censorship" at all. we're talking about protected and non-protected speech. what's on television has absolutely nothing to do with what is protected and what isnt.

    How isn't it? If I own a television station and want to air what SCOTUS itself has ruled protected speech, how can the government then turn around and stop me from doing so yet still maintain muster under the theories you're using? Hence my point...we regulate speech all the time, and yes we actually regulate political speech too.
    second, what youre saying isnt even true. the "censorship" is dictating what the guy running the camera and the network can and cant put on TV. it has nothing at all to do with what the actor can or cant do or say.

    A distinction without a difference. I never said it was a broad regulation, but the fact is there is regulation present. I didn't think for something to run afoul of the 1st Amendment under your theory it had to be a broad restriction...merely an infringement.
    the case youre talking about is va v. black, and you omit an important part of the holding. the court upheld a VA law that outlawed cross burning done _with the intent to intimidate or terrorize_.

    OK, and the intent behind burning a flag isn't to intimidate or terrorize? What if it is? For that matter, how do you conclusively decide mens rea when it comes to cross burning? Under VA law I can't burn a cross in my front yard even if I'm doing it just because I think it's pretty.

    Oh, and I don't think I "omitted" anything in the manner I hope you're not suggesting. I said the court held that burning crosses was a form of terror.
    the court was clear when they said that a law outlawing cross burning would be unconstitutional. you can still burn crosses in VA, you jsut cant do it with an intent to terrorize someone.

    OK, come on over tonight and we'll have a barbecue! And we'll see how goofy Fairfax County prosecutorial discretion is in determining our "intent" when we burn that cross. The default view is that the act, in and of itself, is intended to terrorize and intimidate. And the standard will not be my intent, but how other people "felt" when they looked upon my lawn decoration. So again, a distinction without a difference.
    similarly, you also dont have the right to make verbal speech to people. verbal threats arent protected speech, either.

    Actually, strictly speaking you do have a right to make verbal speech to people, you just don't have a right to force them to listen...
    the entire point of the bill of rights is to insure that the majority doesnt trample the rights of the minority. you're espousing a formulation that seems to champion an interpretation directly contrary to that. 95% of the peopel in this country might think that child molestors should be tarred and feathered, then tortured for the rest of their lives, but that doesnt give the "majority" a right to impose their will on others.

    But we aren't talking about child molesters, are we? We're talking about the public will deciding what ought to be permissible in terms of speech (conservatism is not a 24/7 one size fits all situations philosophy...). Does the public will no longer have the authority to make decisions on what is out of bounds in the public sphere? Can the public will no longer be trusted to decide its own standards? And yet that same public has the right to say porno on saturday morning kidvid is illegal.

    I get both sides of the argument here, I really do. But I'm not ready to use this as some kind of dirge for the BoR. I mean, my personal belief is to deep six the proposed amendment but also erase any any legal penalties that might be thrown at someone for assaulting a flag-burner.  
     
    #  June 23rd, 2005 5:08 PM      KVBigSis
    "How isn't it? If I own a television station and want to air what SCOTUS itself has ruled protected speech, how can the government then turn around and stop me from doing so yet still maintain muster under the theories you're using?"

    I'm not James, but I think the reasoning is that BROADCAST television is limited to a narrow band of airwaves that is owned by the PUBLIC, regardless of who owns the television station. The public, through its government, issues licenses that control what may be broadcast on the public's airwaves.  
     
    #  June 23rd, 2005 6:21 PM      JohnTant
    OK, BigSis, but reduce that down to the fundamentals...we still have government dictating how so-called protected speech can be aired, and at the end of the day that's an abridgement. Now the case made is that it's a reasonable abridgement (and I agree) which is why we tolerate the FCC.
     
     
    #  June 24th, 2005 12:39 AM      Walleye
    following is a response to the question(s) posed in post 22 here and post 35 on "Hyperbole". It is a bit out of order, but as someone who has brought friends home under the flag, I feel compelled to respond anyway.

    That,

    I think the key element needed to separate desecration and necessary destruction for the law (bad idea anyway) is the term "Dignified Manor". In a Flag Destruction Ceremony (found the term but no description on a VFW website), all of the rules regarding the proper handleing of the flag are observed up to the point it is put into the fire (as opposed to setting fire to it) and the total destruction of the flag is carefully ensured (leaving bits and pieces behind is a no, no by my experience). This as opposed to lighting the flag with a bic and waving it around for all to see as it burns (usually incompletely). So, I do see a big difference between the two methods. one is used as part of a statement and one is a way to honorably dispose of damaged and unfit national emblems.

    That being said, I am against any kind of anti-desecration law regardless of the language used. As you pointed out, to burn the Colors is low bar in the first place.

    Regarding what counts as "desecration", strictly speaking, most of the examples you provide are already considered "inappropriate displays" of the national emblem as referenced to the first of the sites you pointed to on the other thread. Though using the Colors as a means of escape would certainly not be frowned upon as long as you properly and honorably destroyed the rope/face mask after you were done with it.

    I admit a strong bias here. While it sickens me to see people treat the flag so poorly, I value and defend their right to do it.  
     
    #  June 24th, 2005 8:57 AM      ThatWouldBeMe
    Walleye,
    Of course there is a huge difference, and anybody at the site of the burning can tell the difference in a heartbeat. The question is how to describe it in legislation.

    But I think we are in agreement.  
     
    #  June 25th, 2005 10:19 AM      quixote235
    If you are thinking of Michigan as a good place, based on this vote, I have 2 words for you: "Stabenow" and "Levin".  
     
    #  June 25th, 2005 10:44 AM      quixote235
    A more relevant thought here, I hope: I am another one that thinks flag-burning is repulsive, but not strongly enough to object to another's right to do so. I would add that "free speech" as a right has been taken from us already.

    Look at all the things the media, the universities, and the "loyal" opposition party in Government do not allow. As someone commented before, the people that object to this amendment are, in many cases, the same people who object to "desecration" of the Koran. So whose right to free speech is being infringed?

    To build on another earlier comment, if I burn a Koran in opposition to the PLO, is that protected speech the same as a PLO supporter burning the Flag in opposition to our Mideast policy? I speak in a realistic/practical sense, rather than a strictly legal one. Would we both be treated the same in the Court of Public Opinion? I think not. I would, for one thing, be afraid to walk down the streets of Dearborn after my little protest....  
     
    #  June 25th, 2005 11:04 AM      Laura
    What, you don't think that what happened to Theo van Gogh could possibly happen here? Or to Oriana Fallaci? Naww.... never happen. Unless we leave it up to Conyers, that is.  
     
    #  June 25th, 2005 11:07 AM      quixote235
    "Conyers" Another word to add to those who think Michigan is a bastion of tolerance.

    And if I recall, this particular idiot represents Dearborn.  
     
    #  June 25th, 2005 12:32 PM      Laura
    ::: laughing ::: yes, but did you spit when you typed Conyers? I could almost picture that for some reason.  
     
    #  June 25th, 2005 4:02 PM      quixote235
    Ah laura, you busted me! The "honorable" Mr. Conyers is one reason why this Detroiter has no desire to go back home.... And I only live an hour away.  
     
    #  July 4th, 2005 5:19 AM      realamerican
    It is 6:11 EST on July 4th. I started my day by going out on the balcony and burning my American flag! The main reason is because I am a true American and no one can tell me I can't do it. I do have one reason. My flag was made in China by some commie bastard that big Republican owned businesses support. The thing was so unAmerican that it wouldn't even burn. It melted. Big business is a disgrace to Americans and so are the phony Republicans that run these communist supporting greedy bastards that care nothing of American workers and sell us out everytime in the interest of profit. What is to profit if one loses one's soul? The soul of being American. Be American by not selling out to Communist China. Don't make the wonderful Chinese people our new slaves. Keep American jobs for Americans. We need healthcare, jobs, education, homes, etc. not just for a few but for all Americans. Let's make us rich, not China and rich greedy phony American corporate pieces of Republican crap. Democrats too. Anyone rich who sells out Americans for profit.  
     
    #  July 4th, 2005 6:44 AM      Laura
    Just curious, realamerican - what was the point of spelling America "Amerika" in your profile?  
     
    #  July 13th, 2005 5:43 PM      raider_t2
    As a veteran of Operation Iraqi Freedom, I have put my life on the line for Iraq and America. I would gladly protect my country's freedoms even if it was to end my life. I would die to protect the flag and the one who wishes to burn it. Everyone just needs to remember that it hurts us as a country to see an American burning their freedoms to ashes a lot more than some crazy jihadist. As for the proper disposal of a flag that is done out of respect not of anger, hate, or rebellion.  
     

     

     


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