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To Burn or Not to Burn?
A little over three years ago, the
Senate
narrowly defeated a proposal that would amend the Constitution
to make burning the American flag illegal. According to
The Wall Street Journal, however, banning the
desecration of the flag is back up
for debate:
The proposal, introduced this spring in the Senate by David Vitter (R., La.), and cosponsored by 20 other Republicans and Democrat Debbie Stabenow of Michigan, probably won't get enough votes. Yet even if it doesn't, one longstanding misunderstanding about the First Amendment is likely to live on.
The center of the debate: Does the First Amendment protect against non-verbal speech? As Eugene Volokh compellingly explains, the Founding Fathers intended the First Amendment to include all forms of expression:
Protection of symbolic speech would have fit well with James Madison's initial draft of the First Amendment, which spoke of the people's "right to speak, to write, or to publish their sentiments." Courts and commentators (including early Supreme Court Justice James Wilson) routinely used "publish" to refer to publicly displaying pictures and symbols, as well as printing books. When Congress recast Madison's phrasing to the shorter "freedom of speech, or of the press" it was not seen as a substantive change.
Yet the bigger question is whether this issue should once again be up for discussion in the U.S. Congress. Flag burning: Unpatriotic? Maybe. Harmful to other people? Not really. So why the need for a ban?
|7.6.09 @ 5:55PM|#
The closest thing I have ever heard to an "argument" for banning flag burning was that it was treason (at least symbolically). That's a pretty weak argument. Does soiling one's self while wearing American flag boxer shorts count as flag desecration?
|7.6.09 @ 5:56PM|#
So why the need for a ban?
Because politicians need something to point to as an accomplishment when they run for re-election and unfortunately voters apparently don't reward politicians who do nothing.
Also, because politicians who actually believe that flag-burning is a sign of our impending destruction are morons and morons don't really grasp the meaning of free speech, or individual rights, or smart fiscal policy so they probably don't think twice about undermining those things.
Warty|7.6.09 @ 5:56PM|#
You can eat my truck,
But you eat my flag,
And you're outta luck!
She's a-wavin' proud around the world,
From Dallas to Fort Worth,
Let me say it again,
Don't mess with Earth!
Kill Zoidberg!
hmm|7.6.09 @ 5:57PM|#
Burn away. Toss in some effigies to burn, maybe tar and feather a few tax collectors, run a few politicians out of town nude, some things just need doing to get the point across.
|7.6.09 @ 6:01PM|#
The decades-long obsession with flag-burning shows that conservatives can't even grasp the basics of freedom. As long as they aren't burning your flag, or one that belongs to someone else, who gives a flying sideways fuck?
IceTrey|7.6.09 @ 6:09PM|#
What is so silly about all of this, is that to make it meaningful, they would have to define the look of the flag to such an exacting detail that any small change would make it unenforceable. What if I burn a flag with 49 stars? What if I burn a flag with the red color one shade lighter than specified? What if I take a pillow case and draw a flag on it with a sharpie? You can go on and on.
|7.6.09 @ 6:12PM|#
So why the need for a ban?
Symbolism ?
Wedge politics?
Scoring political points with the feeble minded?
If this ban prevents shit like
this from happening, MAYBE i can support it.
Mad Max|7.6.09 @ 6:14PM|#
Truly fascinating, but what about this:
Steven
Spielberg and Peter Jackson are working on a couple of Tintin
movies.
Mad Max|7.6.09 @ 6:16PM|#
Why are IllegalForeignBelgians like Herge trying to take over our AmericanCulture?
Dave W.|7.6.09 @ 6:24PM|#
Semi-related:
Funniest Teevee thing of all time (just edging out Unfrozen Caveman
Lawyer and "Ithought Turkeys Could Fly":
http://www.youtube.com/watch?feature=related&v=WPTtwImlvYI
ktc2|7.6.09 @ 6:31PM|#
I cancelled my membership in the American Legion over this issue. They are always pushing to make burning the flag illegal. It's a damn stupid idea. To protect a symbol by destroying what it stands for is about as moronic as it gets.
Mike|7.6.09 @ 6:47PM|#
Don't worry, if a flag burning law ever gets to the Supreme Court, the 4 liberal justices + Scalia and maybe Thomas will strike it down. And I doubt people are going to waste their time making a constitutional amendment.
Tricky Prickears|7.6.09 @ 6:55PM|#
"Symbols are for the symbol minded." - George Carlin
Just bullshit "feel good legislation".
However, when I was a Boy Scout (don't laugh), we were taught that
the flag should not touch the ground. So I guess it's OK to burn
the flag so long as it's not on the ground.
As far as I'm concerned, go ahead and burn an American flag, that's
made in China, wrapped around an illegal Mexican, while singing
God Bless America.
|7.6.09 @ 6:59PM|#
Of course the irony is that, according to federal law, the correct way to dispose of a worn-out or damaged US flag is to burn it (though this is supposed to be done in a reverential atmosphere). So a law banning flag-burning is going to either have to scrap this statute or explicitly state that burning a flag may only be done in a reverential manner, which would run afoul of the 1st.
$20ForHeadDontCum|7.6.09 @ 7:05PM|#
We already have laws against disrespecting foreign officials, so
burning a Mexican flag is illegal. Not a peep about this from
Reason, the
Supremes, or the BHO regime.
Far be it from me to insult the intelligence of anyone, so I'll
just assume they're acting in their
own best interests. But probably not that of any of the rest of
us.
|7.6.09 @ 7:15PM|#
As long as they aren't burning your flag, or one that
belongs to someone else, who gives a flying sideways
fuck?
I'm no aeronautical engineer, but wouldn't most flying fucks HAVE
to be sideways? Or wouldn't sideways at the very least be more
practical?
Mad Max|7.6.09 @ 7:15PM|#
I don't think a flag amendment is a good idea, but neither do I
think it attacks the concept of symbolic speech as such. It strips
protection from one category of symbolic speech, but leaves others
intact - like waving the communist flag, wearing a black armband,
and the like.
The amendment's sponsors criticized the symbolic-speech idea, but
unless they actually include language in the amendment to abolish
the doctrine, it's unlikely the federal courts will stop enforcing
rights to symbolic speech outside of flag abuse.
Mad Max|7.6.09 @ 7:19PM|#
To clarify - despite the sponsors' grumbling about the symbolic-speech doctrine, I assume they're only stripping protection from one category of symbolic speech, based on the message conveyed by that symbolic speech. They are basically acknowledging the meaning of the act as communication, not just as physical behavior. And they will leave other forms of symbolic speech - to which they have less strong objections - as protected as before.
MNG|7.6.09 @ 7:20PM|#
David Vitter can't stand it when he is fucking a whore and sees someone burning the flag on tv...It totally ruins it for him...
|7.6.09 @ 7:32PM|#
You still can burn a flag, but don't you dare burn that
doobie.
What happens if you burn a flag with marijuana stuck to it?
|7.6.09 @ 7:35PM|#
It strips protection from one category of symbolic speech,
but leaves others intact - like waving the communist flag, wearing
a black armband, and the like.
So if Congress bans saying Hail Marys, that doesn't violate the
freedom of religion since you can just say Our Fathers instead?
Mad Max|7.6.09 @ 7:58PM|#
Tulpa,
What would you have said if I had *supported* the flag
amendment?
I explained that it violates freedom of speech to pass this
amendment, and I said it's not a good idea to do so.
That doesn't mean I have to embrace every argument against the
amendment.
Arguing against a constitutional amendment on the grounds that it
violates the intent of a prior amendment isn't conclusive.
Ignignokt|7.6.09 @ 8:19PM|#
...wouldn't most flying fucks HAVE to be sideways? Or wouldn't sideways at the very least be more practical?
Think again, earth man. Our vertical leap is beyond all
measure.
mark|7.6.09 @ 8:33PM|#
I know I said goodbye but work's over.
So one night I was at a kegger attended by liberal hipsters, most
with an IQ well over 100, and this one dude in the back yard gets
out a small American flag (likely made in China and printed on
polyester but that's no excuse), and takes his cigarette and starts
burning holes in it. He takes delight in calling out state names
and burning their star.
So I go up to him and ask what in the fuck he thinks he's doing.
He's so happy to have gotten a rise out of me he continues with the
desecration. One guy drunkenly exclaims, "It's freedom of speech"
as if that even matters, as if it's somehow an expression that
makes speech more free than it was before you started burning the
flag. I tried to get the guy to stop, and took the flag away from
him for a few minutes, but finally relinquished it so that the
asshole could finish burning it: at least he could do no more
damage after that.
The best I could do is leave the party disgusted, and take comfort
in the fact that he probably inhaled toxic plastic fumes from the
tip of his cigarette. Obviously I'm against banning the practice,
but that doesn't make it any less disrespectful to me
personally.
B|7.6.09 @ 8:34PM|#
"We already have laws against disrespecting foreign officials,
so burning a Mexican flag is illegal."
Bullshit it is. I would love to see you provide a link to the
pertinent statute on that one.
Benjamin Franklin|7.6.09 @ 8:34PM|#
If you give a man a fire he will be warm for a day, but if you set him on fire, he will be warm for the rest of his life.
Michael Ejercito|7.6.09 @ 9:00PM|#
One guy drunkenly exclaims, "It's freedom of speech" as if that even matters, as if it's somehow an expression that makes speech more free than it was before you started burning the flag. I tried to get the guy to stop, and took the flag away from him for a few minutes, but finally relinquished it so that the asshole could finish burning it: at least he could do no more damage after that.
Would he have the same attitude about telling crude racist
jokes?
Abe Simpson|7.6.09 @ 9:10PM|#
What if I burn a flag with 49 stars?
I'll be deep in the cold cold ground before I recognize
Missouri!
The Angry Optimist|7.6.09 @ 9:26PM|#
mark - you should not have taken his property, but you should
definitely have loudly and constantly verbally berated him. And
then inform the owner of the home that either Jackass went or you
did.
And, in the future, don't party with hipsters. They suck ass.
|7.6.09 @ 9:37PM|#
So one night I was at a kegger attended by liberal
hipsters
They have kegs of PBR now?
alan|7.6.09 @ 9:40PM|#
mark,
You could have done was ignore him instead of playing into his
fucked up world view, after all it wasn't your property to take
away. No, the best thing you could have done was take out your JFK
figurine and shot it in the head (doesn't every one keep one handy
as well as a gun for moments like this?).
Wait, no, better than that would be to take out your FDR in a
wheelchair figurine and say, 'rise, rise by the holy powers of the
Lord.'
Wait, the absolute best thing you could have done would have been
to take out a Martin Luther King figurine and have him slap and
punch the figurine of a whore.
As stupid as the sacred cows are on the conservative side, there
are even more on the other.
alan|7.6.09 @ 9:42PM|#
You could have done was ignore him instead of playing into
his fucked up world view,
See those editing skills on display there? That's why I get paid
the big bucks.
Ben Kenobi|7.6.09 @ 9:44PM|#
Can't douchebag Vitter just go fuck some whores and stop proposing stupid laws.
hmm|7.6.09 @ 10:13PM|#
and takes his cigarette and starts burning holes in it. He
takes delight in calling out state names and burning their
star.
Step one:
Find a Marine. (preferably a younger intoxicated one and/or more
than one)
Step two:
Tell Marine that there's a guy over here burning a flag and he said
the Marines are where they send all the gay navy guys for
punishment.
Step three:
Stand in front yard and listen to the pleas for mercy coming from
the screaming hippy in the back yard.
Problem solved. Entertainment provided. Snotty intellectual learned
in the ways of Darwinism with respect to brute force. It's a win
win for all.
|7.7.09 @ 12:20AM|#
Step four:
Police gets called, and the Marine gets arrested for assault and
battery and spends the night in jail. The Marine understands that
he is not above the law, and there is nothing wrong with gays in
the military.
Andy|7.7.09 @ 12:31AM|#
Flag burning constitutes hate speech.
Probably.. as this is a libertarian blog, I'd imagine most of us
are against regulating hate speech.
max hats|7.7.09 @ 3:50AM|#
The proposal, introduced this spring in the Senate by David Vitter
Patriotism is the last refuge of the diaper-fetishist
whoremonger.
LarryA|7.7.09 @ 4:39AM|#
Of course the irony is that, according to federal law, the
correct way to dispose of a worn-out or damaged US flag is to burn
it (though this is supposed to be done in a reverential
atmosphere).
The true irony, particularly so soon after the Fourth, is that this
country was born burning our national
flag.
|7.7.09 @ 6:26AM|#
People are offended by flag burning because that is what it is intended to do - offend. That said, I have long felt that the solution to this political problem was simple; treat flag burners the same as any other nitwit who lights a fire in a public place without the applicable permits. A full sized flag, when set on fire, is an obvious hazard to the public. The "message" in burning a flag can be conveyed by means that do not include endangering the public in a way long made illegal for safety reasons. If the flag burners absolutely MUST burn the flag to make their point, they can apply to a fire permit just as the KKK does when they want to have a cross burning. Such treatment would remove from the flag burners the largely undeserved mantle of Defenders of the First Amendment and return them to their proper place as annoying jerks.
Abdul|7.7.09 @ 8:24AM|#
Flag burning: Unpatriotic? Maybe.
Okay, while I agree with the free-speech arguments, how can the
answer to the "Unpatriotic" question be anything other than
"Yes."
Spitting on your mother: Insulting? Maybe.
John|7.7.09 @ 8:51AM|#
This is an insult to all our soldiers that died defending the flag. It should be passed.
|7.7.09 @ 9:37AM|#
"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."
Texas v. Johnson, 491 U.S. 397, 432 (1989) (Rehnquist,
C.J., dissenting).
|7.7.09 @ 9:51AM|#
"Step four:
Police gets called, and the Marine gets arrested for assault and
battery and spends the night in jail. The Marine understands that
he is not above the law, and there is nothing wrong with gays in
the military.
Yes, because valuable lessons about life and obeying the law are
learned by all who spend a night in jail.
More likely, the Marine spends a night in jail, if that. He is
reverred by the cops while there, and returns to his unit a hero of
sorts.
Unlikely that a night in jail will change anyones view of
sexuality, and what is ok and what is not ok.
It will prbably take years, and maybe a friendship and/or an open
mind for that.
Fluffy|7.7.09 @ 10:00AM|#
The best way to protect flags [totems are for savages, by the
way, but whatever floats your boat] if you really want to protect
them is...to not care.
The entire point of burning a flag is to deliberately outrage the
people who worship them.
No one is ever going to burn a "Fluffyerican" flag because I would
not give a shit, so their action would be pointless.
By the way, I just have the point out that I vastly prefer the
original Madisonian language of the amendment, and we got screwed
when it wasn't preserved. The sentence structure in the amendment
that was actually ratified has allowed the courts to treat "the
press" as if it were some sort of subset of the citizenry, defined
by particular actions, and this has resulted in various types of
disparate treatment for different speakers based on whether or not
the state accepts that they are part of "the press", and based on
whether or not the topic of their writing is, in the view of the
state, a fit topic for public consumption. With the original
Madisonian language [for example] I really don't see how the
obscenity exemption could survive, I really don't see how the
commercial speech exemption could survive, I really don't see how
the libel laws that treat "press" coverage of public figures
differently could survive, etc. Fucking bad editors strike
again!
SpongePaul|7.7.09 @ 10:04AM|#
Really, its just a fucking flag. seriously it means nothing its a piece of colored cloth. dont see what the big deal is. its a symbol, thats all. it has no inherant value over any other piece of cloth. and they burn em anyway. its the proper disposal method of old flags. although thats just a bunch of pomp and circumstance too.
John|7.7.09 @ 10:42AM|#
it has no inherant value over any other piece of cloth. and
they burn em anyway.
Our soldiers died to defend that piece of cloth.
Fluffy|7.7.09 @ 10:46AM|#
Our soldiers died to defend that piece of cloth.
I assume this is sarcasm. If not: No, they didn't.
If the United States were conquered by a foreign power, and all of
its citizens sold into slavery, and every written record of its
political institutions and liberty were destroyed, but every
American flag everywhere were preserved with loving devotion as
works of art, would you say, "Well, at least our soldiers
didn't die in vain"?
If so, you = fail.
Zeb|7.7.09 @ 10:46AM|#
Okay, while I agree with the free-speech arguments, how can
the answer to the "Unpatriotic" question be anything other than
"Yes."
I think that this depends on what your definition of patriotism is
and what the motivation of the burner is. I think it is quite
possible to be patriotic and still think that symbols like the flag
are stupid and meaningless. Such a person could burn a flag just
for the pleasure of annoying people who are against that sort of
thing. Burning a flag doesn't have to be a protest or symbolic
attack on the country. It could just be burning a piece of
cloth.
|7.7.09 @ 11:04AM|#
"Okay, while I agree with the free-speech arguments, how can
the answer to the 'Unpatriotic' question be anything other than
'Yes.'"
Because, presumably, one protests something in order to make the
place better. The flag represents freedom. Banning flag burning is
anti-freedom. If one considers the United States the best place in
the world because of its freedom, then burning the flag would be an
exercise in patriotism. Whether flag burning is "unpatriotic" or
not depends on the message being sent.
Ska|7.7.09 @ 11:48AM|#
When they ban flag burning, flag ass wiping will become the
preferred method of protest via flag desecration. Or cutting it up
with scissors. Or one of five million other things you can do. What
about a big sign with a flag and the red circle with a line through
it (has someone come up with a good name for that thing yet?) that
says "Fuck the United States government"?
How can you just ban flag burning and think it stops there?
|7.7.09 @ 11:56AM|#
Does soiling one's self while wearing American flag boxer shorts count as flag desecration?
Actually, it's considered disrespectful to wear the flag in the
first place. That includes lapel pins, in case any of the
self-righteous warmongering hypocrites in public office care.
|7.7.09 @ 11:59AM|#
The soldiers may have died thinking that they were defending the flag. Not too many of them, imo, thought they were defeding the income tax, the regulatory state, gun confiscation, racism, the draft, affirmative action and the war on drugs.
LarryA|7.7.09 @ 2:34PM|#
This is an insult to all our soldiers that died defending
the flag.
The oath soldiers take is to protect and defend the Constitution. A
flag-burning amendment is indeed an insult to them.
Okay, while I agree with the free-speech arguments, how can the
answer to the 'Unpatriotic' question be anything other than
'Yes.'
"Patriotism" is not unquestioning loyalty to the government, over
the people. If the government gets to the point of egregiously
violating the Constitution or Bill of Rights and it's time, per the
Declaration of Independence, to "alter or abolish" said government,
burning the government's flag will be patriotic. Just like when
patriots replaced the Union Jack.
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