My Take On The Flag Burning Amendment...

[DemocratSinceBirth]

I am a First Amendment absolutist so I strenuously oppose a amendment to the Constitution prohibiting flag burning... I also opposed the recent Supreme Court decision to prohibit Cross Burning...


That being said, I can see how Cross Burning and Flag Burning evoke powerful emotional reactions and do hope folks could express their disagreeement without burning either of these symbols...


I wish all our Democratic leaders would embrace my position but it's much too nuanced...

[FunBobbyMucha]

1. I wholly agree, but my question has always been...

...is there really an epidemic of flag burning going on out there in the hinterlands? I'm 39 and have never seen a flag burned other than on flashback reels of Sixties footage, and I've been in hundreds of situations where you would assume such protest would occur.

IMHO, this issue has always been raised as a hot button "Are you a patriot or not?" issue, a way for Republicans to try to bait Dems into having to take the "Well, yeah, but constitutionally a person should be allowed to..." and then they Hannitize them, or Coulterize them, as the case may be.

[Skinner]

2. Could you explain something please?

I'm not familiar with the Supreme Court ruling on cross burning. I am fairly certain that if they did rule on this, they would not have prohibited cross burning, but rather allowed laws which prohibit cross burning. Subtle but important difference. But that's not my question.

Did the Supreme Court decision on cross burning allow laws against ALL cross burning? Or did it only allow laws against burning a cross under certain circumstances -- like, for example, if someone trespasses on your lawn, plants a cross, and burns it?

I would be surprised if there was a 1st Amendment right to trespass and vandalize someone else's property.

I also would be surprised if there was NOT a 1st Amendment right to burn a cross on your own property, provided that you do so in a safe manner.

Do you know the details?

[DemocratSinceBirth]

3. I Believe It Prohibited All Cross Burning...

As I understood it a racist group was burning a cross on private property; a big field......

And the cross burners were arrested and prosecuted under VA law.....


The Supreme Court upheld it....


I hold cross burners and Confederate flag wavers in utter contempt but to prohibit these symbols violates the First Amendment....

I w-i-s-h folks wouldn't burn the American flag either..... Burn effigies of our leaders but leave Old Glory alone.... When folks like Bushco invoke it umproperly they are committing an offense worse than burning....

[Skinner]

4. Hmm. That surprises me.

I am curious what their reasoning was. Any con law experts know which case that was?

[HFishbine]

6. Intent is the deciding factor on cross burnings

Not all cross-burnings are illegal.

------------

WASHINGTON (CNN) -- The Supreme Court Monday upheld key portions of a 50-year-old Virginia law banning cross burnings where the intent is racial intimidation.

But it struck down a provision of the law which declared that any cross burning is on its face evidence of intimidation.

The closely divided court rejected arguments that the practice of burning crosses is a constitutional form of free speech.

<snip>

"We conclude that while a state consistent with the First Amendment may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional," the ruling said.

more: http://www.cnn.com/2003/LAW/04/07/scotus.cross.burning/

[Skinner]

16. I see.

I can understand that. I guess this would be analogous to banging on a black family's front door and telling them "Me and my white supremacist buddies are I'm going to beat the crap out of you if you get uppity." Seems to make sense. Harrassment isn't a constitutional right.

I guess the question is where the line is drawn. Would it be intimidation to burn a cross on your own property if the intent is to intimidate the black family across the street? I suspect so.

[bicentennial_baby]

7. Here's a link for you

"Justice O’Connor delivered the opinion of the Court with respect to Parts I, II, and III, concluding that a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate. Pp. 6—17.

(a) Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan, which, following its formation in 1866, imposed a reign of terror throughout the South, whipping, threatening, and murdering blacks, southern whites who disagreed with the Klan, and “carpetbagger” northern whites. The Klan has often used cross burnings as a tool of intimidation and a threat of impending violence, although such burnings have also remained potent symbols of shared group identity and ideology, serving as a central feature of Klan gatherings. To this day, however, regardless of whether the message is a political one or is also meant to intimidate, the burning of a cross is a “symbol of hate.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 771. While cross burning does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful. Pp. 6—11.

(b) The protections the First Amendment affords speech and expressive conduct are not absolute. This Court has long recognized that the government may regulate certain categories of expression consistent with the Constitution. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571—572. For example, the First Amendment permits a State to ban “true threats,” e.g., Watts v. United States, 394 U.S. 705, 708 (per curiam), which encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals, see, e.g., id., at 708. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur. R. A. V., supra, at 388. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death...."

much more here:

http://supct.law.cornell.edu/supct/html/01-1107.ZS.html

[HFishbine]

10. Right ... "with the intent to intimidate."

Groups can still burn a cross in their own private cerimonies.

[Skinner]

19. Thanks. That makes sense.

"For example, the First Amendment permits a State to ban “true threats,” e.g., Watts v. United States, 394 U.S. 705, 708 (per curiam), which encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals, see, e.g., id., at 708."

If the cross burning is a threat of violence, then it can be banned.

[DemocratSinceBirth]

9. Clarence Thomas Wrote The Majority Opinion...

He compared it to fighting words...

I took Con Law twenty years ago so my understanding of First Amendment law is hazy....

For instance, you can't yell fire in a crowded theatre...

I think for instance you could denigrade African Americans, Jews, gays, etcetera in a public speech but I don't think you can go into a gay neighborhood and say "Kill all the gays" because it's an incitement to violence....


That was the rationale.... Cross Burning was a incitement to violence....

I dissent...

[jumptheshadow]

8. If I remember correctly...

Clarence Thomas argued passionately that cross-burning was intended to invoke fear and thus swayed his colleagues to vote for the ban.

I am with you, I have major problems with any limitation of freedom of speech. This is not a minor issue it's a major one. I believe the Dem candidates should present a unified front for the First Amendment and against any abridgement of the First Amendment.

[zeemike]

5. My advice to liberals would be

To just ignore this little trap the repugs set by raising this issue. It is designed to once again divide us at a time when we need to be together to win.
A constitutional amendment for flag burning does not have to be addressed now and if they should start right now it would be years away from being adopted by ¾ of the states.
Lets stop reacting to there little traps and set some of our own. Lets do take the moral hi ground and let them defend.

[HootieMcBoob]

11. or why not

just say rather than amend the constitution, we'll make a law. Democrats can make the point that there is no epidemic of flag burning in this country and that amending the constitution to prohibit flag burning actually harms the constitution that the flag repersents. When we are sworn in, in the military we take an oath to protect the constitution. If the law is constitutional it will pass the test, if it's not the supreme court will deem in unconstitutional.

Or Dems can just say the hell with it. Let Americans know why the Repubs are bringing this up, voice their opposition to it but say they will vote for it rather than allow it to be used as a wedge to divide the country. Let the people know the motives behind the move.

[HFishbine]

14. Hootie

The important distinction you fail to recognize in your post is that congress is not talking about passing a LAW. A law could indeed be ruled unconstitutional by the SCOTUS. The issue is about passing a CONSTITUTIONAL AMENDMENT -- something the court cannot overturn. In fact, because it would become part of the constitution, the court would be sworn to uphold it. The constitution cannot be ruled unconstitutional.

[Skinner]

17. Actually, I think it would be approved by states very quickly.

I have heard that the required 3/4 have already passed resolutions asking Congress to send them a flag burning amendment. (Wish I had a link for that. It's probably worth double-checking.)

[Mairead]

12. It's not about flag BURNING, it's about flag DESECRATION

Burning is the ONLY canonical way to destroy a flag.

That apparently can't be pointed out too often.

[Brian Sweat]

13. No, it about expressing a view that offends other people.

It's an insidous form of political correctness.

[Mairead]

15. Really? It criminalises expressing views that offend?

Could you quote the language, please? I was under the impression it says 'desecrate the flag'. No?

[Scott Lee]

21. If offense wasn't involved, why would it be an issue?

Respectfully, "offense" is at the root of the whole thing. After all why would it even be an issue if it didn't offend someone (notably, the conservative pseudopatriots in this case)?

[Mairead]

22. But the language isn't about offending, the language is about

desecration of the flag. There really truly is a difference.

[Selwynn]

18. My take is: who cares?

..but then I again, I really don't care about people who see the confederate flag as something other than a symbol of racism either.

I think its pretty embarassing that this is the issue occupying so much of our attention right now..

[leanstreets23]

20. Always the 'regressives', distinguishing themselves

from evil liberals, commies, populists, suckers... progressives. Again, their appetite for free labor, then codifying every discussion of 'class' behind curtains of 'race/crime/morality'. The flag's only code for what cannot be spoken of openly: the cabal's absolute claim to all the world's lives and property through forced-labor prisons, military draft, faith-based scams, ruthlessly politicised economics, methamphetamine-fueled genocide.

No problem. They who guard after the altar, that cold stone is theirs to be maintained, gorged with sweets, precious treasure and entrails. Humorous so far, then one recalls the flags are mostly sewn in China, moronic voters' jubilant complacency...

Hilarious!