Flag Protection Amendment

[MODU]

"A joint resolution proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States. "

The House is to vote today on the Flag Amendment.  This will be the seventh time since 1989, and will probably pass once again.  However, it keeps failing in the Senate by just a handful of votes (needs 67 votes).

1)  Is the amendment needed?

2)  Is burning the flag protected as freedom of "speech?"

[I spent the winter writing songs about getting better]

1) No
2) Yes

[Emsworth]

Another thread on this topic is here.

1. Definitely not
2. Yes

[Blue Rectangle]

No and no.

I'm fairly ambivalent about the amendment.  I don't believe burning a flag is political speech, but I also not interested in banning the practice.

Strictly politically speaking, the Republicans can score some very minor points by supporting this over Democratic opposition.  It's doubtful that any Democrat facing a tough race in 06 will risk opposing this, but you never know.

[WalterMitty]

1. no
2. yes

[MODU]

Ok, question then . . . how is burning the flag "speech?"  It's an action.  The first amendment does not address action.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Some say "expression" is implied in the first amendment.  If that is the case, then why is the "press" specifically mentioned?  Writing is an "expression" of speech.

[WMS]

Yes - while it pains me to see someone burn my flag, I believe the person has the right to his/her opinion. Now, I hope he/she doesn't mind if someone kicks his/her ass as a result!

Ah, the NM approach I remember from the first Gulf War. Student lefty burns U.S. flag, gets nose broken by outraged military veteran bystander. Case goes to jury trial, jury finds vet not guilty. Kind of an implied message there...

[Blue Rectangle]

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--Nelson Muntz

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[Emsworth]

No - let's only amend the Constitution of the United States of America when it is actually important. Perhaps a balanced budget amendment outlawing deficit spending except in case of a congressionally declared war.

It is interesting that you bring up that point. Congressman Gene Taylor introduced a motion to include a balanced budget provision in the flag amendment. Unfortunately, the Republicans voted it down ...

[Blue Rectangle]

No - let's only amend the Constitution of the United States of America when it is actually important. Perhaps a balanced budget amendment outlawing deficit spending except in case of a congressionally declared war.

It is interesting that you bring up that point. Congressman Gene Taylor introduced a motion to include a balanced budget provision in the flag amendment. Unfortunately, the Republicans voted it down ...

[I spent the winter writing songs about getting better]

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--Nelson Muntz

sure they would. They wouldn't exist withou the US and the Consituttion, probably. But they most certainly would exist without the flag.

None of those things would probably exist without the UK either because the US wouldn't, so should burning the Union Jack be banned?

[A18]

What a waste of time.

With regard to the balanced budget provision, I would have supported the amendment if it included that, but I will point out that probably would have ruined its chances of passing either house of Congress.

[I spent the winter writing songs about getting better]

and perhaps the most important question: Doesn't Congress have more important things to be concerned about than this "issue"?

[migrendel]

I have thought about this over the last few days, and I have come to a realization of why this amendment is foolish. It is not for the reasons which I thought initially.

It crossed my mind that the government prevents the burning of a great many things. For example, it is illegal to burn leaves in most municipalities. Under the logic of Texas v. Johnson, it could be plausibly argued that if a person does this publically as a statement of protest against environmentalism, for example, this act is protected under the First Amendment. This could give rise to a whole category of expressive activities that are a protected component of the discourse, and as in the case of leaf burning, some could run afoul of the consideration of the rights of the community as manifested in our laws. For that reason, I have come to the conclusion that flag burning is not speech under our Constitution, but an action that must be judged by different standards.

The next crucial factor to examine is the rationale under which flag burning or the broader category of desecration is made illegal. First of all, some contend that the flag has a hallowed place in our national heritage, and it demands a special protection for that reason. This is not convincing by any means, but completely legitimate laws have passed for less imminent reasons. Secondly, it is contended that the conduct is patently offensive. This is when the Constitution begins to be implicated. No one is protected from offense at the expense of the free exercise of the privileges and immunitites of a citizen. Thus, flag burning falls well within a concept of liberty of action, an idea described perfectly in spirit but erroneously in specifics by Justice Douglas's Griswold opinion. Finally, and most ignominiously, it is contended that flag desecration (or cross burning, Nazi Party demonstrations, et al.) can be made illegal because it constitutes a breach of the peace. This, however, stipulates that a citizen loses his right to do as he wishes because of a legislative postulation of how his fellow citizens might react. Since it is rooted in a concept as repugnant as prior restraint, this notion is only fit for Pinochet's Chile or Ceaucescu's Romania.

Ultimately, what the House and Senate must consider is the flag desecrators themselves. When they do this, they are not necessarily burning the flag for all the world to see, but to exorcise the demon of disgust with their nation. If we take away this, a privilege that only a mature society can afford, we make their reasons all the more legitimate.

[WMS]

Yes - while it pains me to see someone burn my flag, I believe the person has the right to his/her opinion. Now, I hope he/she doesn't mind if someone kicks his/her ass as a result!

Ah, the NM approach I remember from the first Gulf War. Student lefty burns U.S. flag, gets nose broken by outraged military veteran bystander. Case goes to jury trial, jury finds vet not guilty. Kind of an implied message there...

Similar situation happened during the Vietnam era when I was in college. I rather tall and very hairy protester was chanting stuff like "Ho Ho Ho Chi Minh The NLF is gonna win!" while setting fire to a US flag. A former Marine who was about five feet tall and probably weighed in at 200 pounds (NO fat, BTW- just muscle) stepped forward and put out the fire then proceeded to kick this guy's ass up onto his shoulders so he would have to remove his shirt to crap. When the campus police stepped in the protester said he did not wish to press charges. A VERY wise move on his part. The entire gathering sort of melted away. Might does not make right but it sure beats whatever is in second place!

And remember folks, there was no state/governmental involvement in either of the cases NewFeddy and I mentioned. Just actions of the citizenry, not governmental oppression.

[Emsworth]

And remember folks, there was no state/governmental involvement in either of the cases NewFeddy and I mentioned. Just actions of the citizenry, not governmental oppression.

It's a miscarriage of justice, nonetheless.

[Blue Rectangle]

migrendel and others,
The protection of free speech was not intended to allow people to offend each other, it was intended to protect legitimate political speech.  Free speech has several reasonable limits that cause little or no danger to our political freedoms: controls on obscenity, harassment, profanity, slander, false and misleading statements, speech that incites violence, etc.  The burning of the flag fits into one or more of those categories, but I still don't see what political message it communicates that is worth protecting or that couldn't be stated in just a few words (which would probably be protected speech).

[WMS]

And remember folks, there was no state/governmental involvement in either of the cases NewFeddy and I mentioned. Just actions of the citizenry, not governmental oppression.

It's a miscarriage of justice, nonetheless.

Perhaps, although the point being made was more of a practical one about common sense - yeah, you can burn a flag, but be prepared to face the consequences from your fellow citizens. Me, I'd just ignore the dumb bastard and make sure the flag-burning attention whore is deprived of what they so clearly want.

[Emsworth]

The protection of free speech was not intended to allow people to offend each other, it was intended to protect legitimate political speech ... I still don't see what political message it communicates that is worth protecting

I intend no disrespect, but I do not feel that the government should be allowed to decide what is "worth protecting" and what is not.

[A18]

My main problem with this is not that it's a violation of free expression (it is, but a very minor one), but that it's a complete waste of an amendment.

Let's get a line-item veto, a balanced budget, and no presidential term limits.

[Beet]

My main problem with this is not that it's a violation of free expression (it is, but a very minor one), but that it's a complete waste of an amendment.

Let's get a line-item veto, a balanced budget, and no presidential term limits.

None of that will ever get passed.

[Emsworth]

My main problem with this is not that it's a violation of free expression (it is, but a very minor one), but that it's a complete waste of an amendment.

Let's get a line-item veto, a balanced budget, and no presidential term limits.

None of that will ever get passed.

The balanced budget amendment fell one vote short in the Senate a few years ago, I believe.

[Beet]

My main problem with this is not that it's a violation of free expression (it is, but a very minor one), but that it's a complete waste of an amendment.

Let's get a line-item veto, a balanced budget, and no presidential term limits.

None of that will ever get passed.

The balanced budget amendment fell one vote short in the Senate a few years ago, I believe.

None of it will ever get passed.

[A18]

The Line Item Veto Act of 1996 passed the Senate 69-29, and the House without a rollcall vote.

[migrendel]

How would offense be measured? There are two possible ways: First, something could be measured by its potential to offend. This would involve a subjective determination of what is acceptable to enter the discourse, and that capriciousness is what the First Amendment obviously prohibits. Second, it could be measured by whether it has actually offended someone. Considering that we are nation of shrinking violets who are offended by the momentary sight of Janet Jackson's nipple, I doubt anything controversial would be legally protected. Finally, we could continue to erect an elaborate series of judicial tests for this. Since no one can definitively say what level of interest is prurient, what kind of offense is patent, and when something becomes utterly irredeeming, it would give a judiciary a level of discretion that would render it dictatorial. With all my fate in the objectivity of the courts and their ability to discern proper legal standards, even I am horrified at that notion. We could have an imperial judiciary at this country, and if that happens, it will be the fault of the conservatives.