Senate Rejects Flag-Burning Amendment by One Vote
Unfortunately, this perennial stinker will be back.
I like what Sen. Daniel Inouye (D-HI) had to say:
“While I take offense at disrespect to the flag,” he said, “I nonetheless believe it is my continued duty as a veteran, as an American citizen, and as a United States senator to defend the constitutional right of protesters to use the flag in nonviolent speech.”
June 27th, 2006 at 7:29 pm
I love Senator Inouye. He was one of my dad’s good friends during his term in the Senate (1966-73). What an absolutely correct understanding of what America ought to be about!
June 28th, 2006 at 7:36 am
I’m still waiting for someone to show me what dictionary SCOTUS used when it ruled that speech can be an act, rather than words.
June 28th, 2006 at 8:21 am
Don, you can’t be serious. Heard about the famous mime troupe that had the falling out over their last booking? Yeah, it’s been three weeks now and they’re still not speaking.
But really. Surely you’re not suggesting self-expression, political or any other kind, should be limited to words. And no, I don’t think it’s a stretch to assume that the Founding Fathers meant “self-expression” when they wrote “speech.”
But if your version means all those silly d*amned magnetic ribbons will disappear from America’s cars, then I’m with ya.
June 28th, 2006 at 12:47 pm
Del, of course I’m serious. I admit I’m under-educated, but I know that words have meanings that are either naturally understood, or can be accessed in dictionaries. If that were not so, no one would be able to understand what anyone else really means when they speak, sign, write, or even mime words. That would be akin to living in the shadow of the Tower of Babel. An act, such as burning a flag or throwing hand grenades at an abortion clinic, or blowing up buildings is an act (and I doubt that you would want the last two examples declared free speech rather than criminal acts), but no dictionary I have seen classifies an act as speech. When someone shows me one I’ll change my opinion.
June 28th, 2006 at 1:43 pm
Don, when an army officer has the stripes ripped from his uniform in full view of his fellow soldiers (if they really do that? I’ve only seen it in the movies) I don’t think anybody is consulting a dictionary to figure out what the heck is going on. Ditto when a flag is burned.
As far as words always having a clearly understood, accessible meaning that is the same to everyone, I commend you to the postmodernists.
I think you realize that the blowing up of buildings, which damages property and people, is not an appropriate parallel to flag burning. However, erecting dozens of tiny white crosses on the lawn of the clinic (which would be trespass, I suppose) or on the lawn of a nearby church, expresses the intent of the “speakers.”
Do you believe that, although the act of TALKING, with words, about burning the flag is protected by the Constitution, the actual burning of said flag can and should be prohibited? Why? Because it’s offensive? Surely both acts are offensive - would you like to see them both prohibited, if only that were possible? What other forms of protest or expressions of disapproval of the government or of the military would you like to see done away with?
June 28th, 2006 at 2:57 pm
Del, back to Words Have Meanings 101:
There’s a difference between an army officer and an army non-commissioned officer. Officers don’t wear stripes. They were insignia of their rank. And, what is happening when stripes are ripped off (and I’ve seen it done) is an act, and no speech is involved.
While burning a flag is not as destructive as blowing up buildings, it is still, by definition, a destructive act, unless you can prove otherwise with an authoritative source on the meaning of words such as a dictionary. Just because someone or some body of government such as SCOTUS says that black is white does not make it so, and I think you know that.
Placing crosses somewhere destroys nothing, but that too is still an act whether it conveys someone’s thoughts or feelings or not. If a person declares verbally why they are placing crosses in some place, that is speech and should be protected, but not the act itself.
My answer to your question should have already been obvious from what I’ve said – “Yes, because speech is speech and is protected, but destructive acts are not speech and do not deserve protection whether they are offensive or not”.
June 28th, 2006 at 3:18 pm
Okay, how about this? If I buy a (most likely Chinese-made) flag with my own money, it’s my property, and I should be able to do as I see fit with it — as long as I don’t endanger others. If the flag belongs to someone else, I have no right to do anything to it. If I blow up a building, even my own building, I am quite likely to endanger the lives and/or property of others, and I may be attempting to commit insurance fraud. That doesn’t address the “speech” question, but it does differentiate between burning a flag and blowing up a building.
June 28th, 2006 at 5:30 pm
Oh, I see. So the flag couldn’t be desecrated, no matter whose property it was. Because of its special, powerful symbolism, it would be protected by law.
Like the Qu’ran is in some countries.
June 28th, 2006 at 5:57 pm
Apparently that’s what a majority of our legislators believe. It contradicts what they usually say about private property rights and freedoms, but cognitive dissonance isn’t a problem as long as they can pander to the base.
June 28th, 2006 at 7:19 pm
From the beginning, my only point has been that at one time in this country it was illegal to desecrate our flag, our coinage, or our currency. I may be the only one here old enough to remember that.
Then, SCOTUS said that an “act” is more than an act, because an act such as desecrating our flag is “speech”, and thus protected under the first amendment. SCOTUS, in so doing, I contend, not only re-wrote law, but re-wrote the dictionary definition of speech, which, apparently no one can produce now.
My problem is not about burning a flag, but about knowing what words really mean.
When did they stop teaching English in school?
June 28th, 2006 at 8:44 pm
Okay Don, I cannot allow Mrs. Loebenstein and a host of others who taught me English to be so maligned, so I used my readin’ skills (not to mention Google skills) to find the SCOTUS opinion for Texas v. Johnson, the decision that rendered invalid the 48 state laws prohibiting flag desecration. Brennan, probably not one of your favorite justices, wrote the opinion for the 5-4 majority:
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.
Other wordless actions the court deemed sufficiently imbued with expressiveness were “students’ wearing of black armbands to protest American military involvement in Vietnam … a sit-in by blacks in a “whites only” area to protest segregation … the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam … and of picketing about a wide variety of causes.”
Two justices were moved to write dissents. Rehnquist seemed to agree with you, that burning a flag that “millions and millions of Americans regard … with an almost mystical reverence” did not amount to speech so much as “an inarticulate grunt or roar.” (I hope that, especially these days, we are not going to be swayed by what millions of Americans do or do not regard with mystical reverence.)
Justice Steven’s dissent is slightly different. He passionately describes the value of the flag as a symbol of “freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations.” He admits that Americans are allowed to express their dissatisfaction with the country, but feels that this particular means of doing so is so very offensive that it should be prohibited. He compares it to spray-painting the Lincoln Memorial or blowing out the flame at Kennedy’s tomb (comparisons I do not accept since, like Kathy explained, the flag-burning is only damaging his own property, not a national monument).
Even Justice Stevens, however, admits that “conceivably… 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.” Amen! That’s the kind of freedom I get teary-eyed about, and that’s the kind I think is worth fighting to defend.
BTW, if we’re going to be consulting dictionaries, I didn’t see anything about the written word in the definition of “speech” in mine. I’m glad, however, that the law is not so literal as to fail to protect written as well as spoken expression.
June 28th, 2006 at 9:27 pm
Don, I do understand your point. To be honest, I don’t remember (if I ever knew) how the Supreme Court moved from “speech” to “expression”. We need to get Wheeler over here when he’s done with his case.
June 29th, 2006 at 6:53 am
Or not, now that I’ve found Del’s comment waiting in moderation.
June 29th, 2006 at 8:40 am
Del,
Great post. So I guess using Justice Stevens’ logic, I could not burn an Iraqi flag, because Americans of Iraqi descent could consider the Iraqi flag a symbol of “freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations.”
I realize I am being somewhat absurd here. However, I repeat what I said to BL the other day…one of the great things about our Consititution is that it protects all of us, even jerks who want to burn our flag.
June 29th, 2006 at 9:33 am
I commend Del and thank her for her research which I wouldn’t have time to do even if I had enough intelligence to do it. It isn’t generic English that I have been discussing. I’ve talked about semantics with no intent to malign anyone.
When Justice Brennan said, “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” I can’t help but wonder who he meant by “we”. Obviously, he meant at least himself and four other justices, but who else? He wasn’t speaking of me or any lexicographer whose product I’ve read. Other than the 4 dissenting justices, how many people with just ordinary common sense held, and still hold, an opposing view? A margin of one does not make for an overwhelming or totally convincing verdict.
Lawyers seem to have an uncanny knack for being able to make one thing sound as if it means something completely different. Maybe someone should have followed the advice of the Bard and killed all the lawyers first.
I repeat, it isn’t the act of burning the flag, but the act of arbitrarily changing the meaning of a word that I’m trying to point out, and that law should not be changed merely by 5 people wearing black robes convoluting the meaning of a word.
Del is correct saying that “speech” is not defined as the written word, which emphasizes my point. I mentioned it because of the connection between free speech and freedom of the press.
This country is swayed by the opinions of millions of Americans without “mystical reverence” by something called votes. The majority then on the court must have been swayed by a “mystical irreverence” for our language. Perhaps if the justices were elected rather than being appointed for life those 5 might have been seeking other employment when they came up for re-election. As it is, the SCOTUS is the MOST EQUAL of the 3 supposedly co-equal branches of government.
There have been a number of murders in the history of this country that could probably be classified as political assassinations. Following the reasoning of those 5 justices, how many of the murderers could have gotten off free if they had claimed that the act of murder was merely an expression of their hatred for the victim or the victim’s political position or policies, and thus protected under the first amendment?
June 29th, 2006 at 10:27 am
how many of the murderers could have gotten off free if they had claimed that the act of murder was merely an expression of their hatred for the victim or the victim’s political position or policies, and thus protected under the first amendment?
Don, there is no question of extending the mantle of free speech protection to criminal acts. We are talking about burning a piece of cloth.
June 29th, 2006 at 6:15 pm
Del has hit the nail on the head with, “there is no question of extending the mantle of free speech protection to criminal acts. We are talking about burning a piece of cloth”. That is precisely what the SCOTUS did in Texas v. Johnson when five justices decreed that the word “speech” meant something that it still doesn’t mean.
With that said, I declare a unilateral cease fire, not because I am wrong, but simply because I’m tired of wasting my time on this.