Burning the Flag Is a Crime

[RunDownHouse]

...or it will be, if this thing passes.

CNN.com

I don't understand how any thinking person, conservative or not, could support this.

[BCPVP]

This is '06 red meat. It won't pass.

[Copernicus]

Given that the SCOTUS only voted 5-4 that it was protected free speech under the Constitution, Im sure the minority opinion will have some valid arguments.

Passage will be difficult, but the majority of Americans favor it, including me.

[ QUOTE ]
Rhenquist, O'Connor, White dissenting:

In the First and Second World Wars, thousands of our countrymen died on foreign soil fighting for the American cause. At Iwo Jima in the Second World War, United States Marines fought hand to hand against thousands of Japanese. By the time the Marines reached the top of Mount Suribachi, they raised a piece of pipe upright and from one end fluttered a flag....
The flag symbolizes the Nation in peace as well as in war. It signifies our national presence on battleships, airplanes, military installations, and public buildings from the United States Capitol to the thousands of county courthouses and city halls throughout the country. Two flags are prominently placed in our courtroom. Countless flags are placed by the graves of loved ones each year on what was first called Decoration Day, and is now called Memorial Day....

The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag....

The result of the Texas statute is obviously to deny one in Johnson's frame of mind one of many means of "symbolic speech." Far from being a case of "one picture being worth a thousand words," flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others. Only five years ago we said that "the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places." The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest -- a form of protest that was profoundly offensive to many -- and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy. Thus, in no way can it be said that Texas is punishing him because his hearers -- or any other group of people -- were profoundly opposed to the message that he sought to convey. Such opposition is no proper basis for restricting speech or expression under the First Amendment. It was Johnson's use of this particular symbol, and not the idea that he sought to convey by it or by his many other expressions, for which he was punished.

The Court concludes its opinion with a regrettably patronizing civics lecture, presumably addressed to the Members of both Houses of Congress, the members of the 48 state legislatures that enacted prohibitions against flag burning, and the troops fighting under that flag in Vietnam who objected to its being burned: "The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong." The Court's role as the final expositor of the Constitution is well established, but its role as a Platonic guardian admonishing those responsible to public opinion as if they were truant schoolchildren has no similar place in our system of government. Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people -- whether it be murder, embezzlement, pollution, or flag burning.

JUSTICE STEVENS, dissenting.

As the Court analyzes this case, it presents the question whether the State of Texas, or indeed the Federal Government, has the power to prohibit the public desecration of the American flag. The question is unique. In my judgment rules that apply to a host of other symbols, such as state flags, armbands, or various privately promoted emblems of political or commercial identity, are not necessarily controlling. Even if flag burning could be considered just another species of symbolic speech under the logical application of the rules that the Court has developed in its interpretation of the First Amendment in other contexts, this case has an intangible dimension that makes those rules inapplicable.

A country's flag is a symbol of more than "nationhood and national unity." It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas. The fleurs-de-lis and the tricolor both symbolized "nationhood and national unity," but they had vastly different meanings. The message conveyed by some flags -- the swastika, for example -- may survive long after it has outlived its usefulness as a symbol of regimented unity in a particular nation.

So it is with the American flag. It is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations. The symbol carries its message to dissidents both at home and abroad who may have no interest at all in our national unity or survival.

The value of the flag as a symbol cannot be measured. Even so, I have no doubt that the interest in preserving that value for the future is both significant and legitimate. Conceivably that value will be enhanced by the Court's conclusion that our national commitment to free expression is so strong that even the United States as ultimate guarantor of that freedom is without power to prohibit the desecration of its unique symbol. But I am unpersuaded. The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might enlarge the market for free expression, but at a cost I would not pay. Similarly, in my considered judgment, sanctioning the public desecration of the flag will tarnish its value -- both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it....

The Court is quite wrong in blandly asserting that respondent "was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values." Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spray-paint -- or perhaps convey with a motion picture projector -- his message of dissatisfaction on the facade of the Lincoln Memorial, there would be no question about the power of the Government to prohibit his means of expression. The prohibition would be supported by the legitimate interest in preserving the quality of an important national asset. Though the asset at stake in this case is intangible, given its unique value, the same interest supports a prohibition on the desecration of the American flag.

The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for -- and our history demonstrates that they are -- it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.

I respectfully dissent.



[/ QUOTE ]

[andyfox]

"flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others."

So it's OK to prohibit speech because it is indulged in to antagonize others or because it's inarticulate?

[Copernicus]

[ QUOTE ]
"flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others."

So it's OK to prohibit speech because it is indulged in to antagonize others or because it's inarticulate?

[/ QUOTE ]

I dont think "inarticulate" is dispositive, but indulged in to antagonize others could be. Their point is that the dissenter has numerous other means of expression, and his choice of flag desecration does not express his position.. it isnt "speech" since from the act itself you dont know if hes protesting the war, taxes, abortion or whatever.

In fact the choice of an inflammatory (no pun intended) method of expression might be considered "Breach of Peace" as the Court upheld in Cantwell v Connecticut.

[ QUOTE ]
The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others.

[/ QUOTE ]

I think there is a fine line here and I fall on the side of it not being protected speech mostly from personal experience. I was the quintessential 60s hippie. Long haired, psychedlic eating, grass smoking, Woodstock hippie. I wore an army coat (probably called a "duster" these days") with torn American flag, soaked in cows blood, sewn on the back.

There was no message in wearing it other than "f&*K you", youre establishment and Im not. I dont agree that is protected any more than walking up to someone, getting in their face and yelling "F&^K you".

[Copernicus]

Are first amendment rights violated when a homeowners association bans flying the flag on your private property?

[jman220]

[ QUOTE ]
Are first amendment rights violated when a homeowners association bans flying the flag on your private property?

[/ QUOTE ]

Maybe if the homeowners association is acting as a de facto government agency, which I doubt.

[MelchyBeau]

Copernicus,

yes your rights are being violated.

Even if you feel flag burning should be illegal, why does it need to be a constitutional amendment?

[andyfox]

I'm in favor of peole being able to say f*ck you you're establishment and I'm not. Getting in their face and yelling it is another thing.

[Copernicus]

[ QUOTE ]
I'm in favor of peole being able to say f*ck you you're establishment and I'm not. Getting in their face and yelling it is another thing.

[/ QUOTE ]

I dont think it is another thing..the intent is the same and the potential result is the same.