From President Trump's executive order, "Prosecuting Burning of the American Flag."
Does that violate the First Amendment even though it explicitly limits itself to what is "consistent with the First Amendment"?
Here's Texas v. Johnson.
I feel like rereading the dissent:
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 flagburning 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 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill 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. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression -- including uttering words critical of the flag, see Street v. New York, 394 U. S. 576 (1969) -- be employed.
It is appropriate to emphasize certain propositions that are not implicated by this case. The statutory prohibition of flag desecration does not
"prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 642 (1943). The statute does not compel any conduct or any profession of respect for any idea or any symbol.
Nor does the statute violate "the government's paramount obligation of neutrality in its regulation of protected communication." Young v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 70 (1976) (plurality opinion). The content of respondent's message has no relevance whatsoever to the case. The concept of "desecration" does not turn on the substance of the message the actor intends to convey, but rather on whether those who view the act will take serious offense. Accordingly, one intending to convey a message of respect for the flag by burning it in a public square might nonetheless be guilty of desecration if he knows that others -- perhaps simply because they misperceive the intended message -- will be seriously offended. Indeed, even if the actor knows that all possible witnesses will understand that he intends to send a message of respect, he might still be guilty of desecration if he also knows that this understanding does not lessen the offense taken by some of those witnesses. Thus, this is not a case in which the fact that "it is the speaker's opinion that gives offense" provides a special "reason for according it constitutional protection," FCC v. Pacifica Foundation, 438 U. S. 726, 438 U. S. 745 (1978) (plurality opinion). The case has nothing to do with "disagreeable ideas," see ante at 491 U. S. 409. It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset.
The Court is therefore 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."
Ante at 491 U. S. 411. Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spraypaint -- 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.
Who wrote that? Not Scalia. He joined the majority and he was wont to use it as an example of how his method of interpretation got him to some results he didn't like.
No, that Texas v. Johnson dissent was written by Justice John Paul Stevens.
38 comments:
Trump knows his order is unconstitutional. His supporters know it is unconstitutional.
Everyone knows it is a trap.
Except for the stupid people who will out themselves right here in this very thread and the idiots who start burning flags in protest.
Are the Palestinian flag and the Pride flag thus protected from unnecessary desecration? And when is desecration necessary?
Burning a flag is free speech or an acceptable method of disposal. Starting a fire in the street is a crime. I don't see a problem. The law is clear. I burn them all the time, but not in the street.
Time to create a pyre in Dearborn and burn a stack of Qurans and copies of white fragility and Steel Magnolias. We could also go collect a bunch of the gay porn manuals from school libraries and add them to the fire.
Let us see who is really on board with this first amendment thing.
It seems to me the free speech argument is being stretched to making crimes legal if you do it for political purposes and that's not workable.
Yeah, Trump's trying to inspire Democrats to burn the American flag right before the mid-terms.
I wonder if they will listen to Admiral Ackbar
Burning the American flag is hate speech.
bagoh20 said...
Standard Cloward Piven.
Everything coming from the left on this topic is dishonest and hypocritical.
I think burning a pile of tires and furniture in the street blocking traffic for hours and creating massive clouds of smoke outside of the Fed Reserve building is a constitutionally protected method of registering my displeasure with their incompetence and mismanagement of the money supply.
Society must conform to my interpretation of the first amendment. It is in the second or third sentence somewhere. We can call it the Achilles clause or something. I am sure the supreme courts can find something in international law that supports this novel legal theory.
That "fighting words" case is horrible. It was horrible when I was in law school.
It's not a speaker who starts a fight. It's the guy who throws the first punch. To teach people otherwise is moronic. You're allowing violent people to silence others. Hello.
This amounts to uneforceable mush. Back in 1970, both the anti-establishment Abbie Hoffman and the traditional patriot Roy Rogers wore the same model US flag shirt. Hoffman's intent may have been ironic/sarcastic, yet the contrast resulted in ??????????
The time and cost involved with a prosecution gives a protestor (Hoffman here) exactly what they want and a self-goal for a prosecutor.
Next up, look up photos of the Palestine flag versus those of Jordan, Kuwait, and Sudan. Wanna burn one but not the others? How about burning the Liberian or Puerto Rican flags instead of the US flag?
If I love the USA and wear US flag clothes as I burn the Liberian flag to protest their corruption I'm good to go?
Albinophobic symbols, and Baby LM not, are next. Progress.
@Althouse, could a distinguished Constitutional Law professor please explain what the “fighting words” exemption is all about for the benefit of those of us who did not attend law school? Certainly I feel an intense desire to beat the f***ing crap out of someone I see burning an American flag. How does “fighting words” figure in or not figure in.
This is as much a jab at Keir Starmer's UK policies as it is a trap for Democrats. It could well be inciting in the UK at this point if flags start getting burned.
Agreed that Trump is also trolling the Left so that they will immediately start burning US flags prior to the mid-terms
Burning the American flag is hate speech.
Oh, well done, sir!
It pisses me off when I see them burn the FLAG... so I guess to liberals I'd be 'triggered'.. and thus they should want desecration of the FLAG banned. So what is their problem?
Big Mike said…
Certainly I feel an intense desire to beat the f***ing crap out of someone I see burning an American flag. How does “fighting words” figure in or not figure in.
You are a white male. You are toxically masculine and you must not make white college educated women uncomfortable.
Any demand for consistency and logic is inherently wrong in the eyes of the college educated white woman. They demand social status equal to men but their wiring does not support leadership patterns that are beneficial to society.
Leland said...
This is as much a jab at Keir Starmer's UK policies as it is a trap for Democrats. It could well be inciting in the UK at this point if flags start getting burned.
I didn’t think of that.
Good catch.
We're talking about flag-burning, the first amendment, Cracker Barrel, and not Ghislane Maxwell. This is how you manage the daily cycle if you are management and you want to move on.
This also makes me think of the sheer DENSITY of issues that are now hosed into the media like a harvester chucking silage into a cart. Trump has been masterful at creating a density and variety of input that taxes their ability to cut out a single point of weakness and hammer day after day at him for four years. What a buffoon, eh?
I think that it's important to allow people to burn the flag as protest. (Assuming they aren't causing a fire hazard.) That way you know where they stand.
Why not just arrest them for arson, an unlawful fire in public?
“Just last week, folks, it was unbelievable — all over the country, people were burning the American flag. Can you believe it? Flags! Burning! Disgraceful, just disgraceful. People were coming up to me, crying, asking, ‘Sir, sir, can you put a stop to this?’ And I said, ‘Of course I can. Nobody protects the flag better than me. Nobody.’ I’ve been telling them — we’re going to make flag burning illegal, we’re going to end it once and for all. The Fake News won’t tell you this, but it’s true. It’s a disaster! A total disaster. And remember — I love the flag, I’ve always loved the flag… probably more than anyone else in history. Tremendous love for the flag!”
"We're talking about flag-burning, the first amendment, Cracker Barrel, and not Ghislane Maxwell. This is how you manage the daily cycle if you are management and you want to move on."
Actually, I have a tab open on "Virginia Giuffre’s memoir ‘contains Prince Andrew puppet assault claim’/Posthumous memoir by victim of Jeffrey Epstein will be released in late October."
https://www.thetimes.com/us/news-today/article/prince-andrew-virginia-giuffre-book-puppet-8xvq5w95j
I have a tag for "puppets," so that's bloggable.
AA, you certainly got me. No way I was expecting Stevens to be the author of that dissent.
Thanks.
I always thought Stevens’ dissent here was just shockingly absurd. Of course you can’t damage the Washington Monument or the Lincoln Memorial; they are specific buildings you do not own or control. In the same manner, you can’t burn the flag that is displayed at the White House, or the one at the local federal courthouse or on your ultra-patriotic neighbor’s front lawn. But you can certainly create your own model of the Lincoln Memorial and spray paint it all you want.
These aren’t comparable situations. This is a very basic concept.
Just define it as a hate crime like burning a koran.
Lyssa: I always thought Stevens’ dissent here was just shockingly absurd. Of course you can’t damage the Washington Monument or the Lincoln Memorial; they are specific buildings you do not own or control.
I was all in on the dissent. You just changed my mind.
As long as I can recall, politicians crowing about flag burning has been a signal they’re doing something so unsavory they don’t want it to grab headlines…
RCOCEAN II said...
Burning the American flag is hate speech.
Short. Dense. Highlights democrat hypocrisy. Produced a chuckle.
Best post we have seen in a while.
10/10.
It should always be legal to desecrate your own US flag, regardless of whatever message it is you want to convey. The problem with the Lincoln Memorial is that it is a singular piece of federal property, and the federal government has the obvious right to regulate its use and so on. Your flag that you purchase is yours and yours alone.
I am not sure what JP Stevens was thinking in that dissent.
Another commenter mentioned that burning is the recommended manner of disposal for old US flags.
So a flag-burning statute would have the problem of how to distinguish the two, no? Do you lock up Scout Troop 586 for having a flag-exchange day where they reverently burn the old flags in a firepit they built themselves, while the troop bugler plays 'Taps?'
No? Well, what if I decide to mourn the deterioration of my country under Obama/Fauci/Biden/etc (or under Bush/Bush/Trump/Trump - take your pick) by reverently burning a flag in a nice firepit while I play 'Taps' (on 8-track; I can't bugle)?
What if I'm an anti-Semite and I make a US flag, but with Magen David 6-point stars instead of 5-points, then burn it? Or a pro-Semite and I make the field crescents and stars, to protest Mamdani? Or someone arguing about trans stuff, and I burn a 50-cocks flag? Do those violate the statute?
Or if I'm a black (or white) nationalist and make a US flag in the green/black/red Black Liberation color scheme, and burn it, either to oppose or support white supremacy? Does that violate the statute?
It seems like there would always be some analysis of content, beyond just the 'content' of the flag.
But of course, Trump did not write a statute. He wrote an Executive Order directing the use of existing non-flag-related laws, such as public fire statutes, to prosecute flag burning. Prosecutors (and the President is the real Attorney General) do this sort of thing all the time - see, e.g., doing Capone for tax evasion. Capone couldn't say "you prosecuted me for being Italian!" or "you didn't prove I'm a gangsta!" Or if he did, the answer was "We prosecuted you for tax evasion."
Finally, couldn't there be a nationwide effort to sue all flag-burners, and the organizations that set up their demonstrations, for IIED? Venue could be in any hamlet where the victim saw the fire on TV. I would volunteer, as a veteran, to be scarred for life by the sight of the flag I defended being so mistreated, but I live in DC. Surely a network of Podunk County veterans, and slick-ass plaintiff's lawyers, could be put together with a little bit of Trump private money.
RR
JSM
We're talking about flag-burning, the first amendment, Cracker Barrel, and not Ghislane Maxwell.
So WHY isn't the mainstream leftist media talking about "Ghislane Maxwell" anyway? Four interviews, hours of audio and we get radio silence from the "whatabouteopstein!" crowd. I too would like to know why that dog has quit barking. Is what she says really that uninteresting after all the breathless demands to RELEASE Epstein info.
Why aren't Kak and Inga and dumb Mark and the rest quoting her. They all said it was the most important story just days ago and NO FILES meant an obviously cover up yet the main witness is...well, uninteresting to them now.
So Mezzrow we DO find ourselves discussing other things. Why do YOU think that is?
"Are the Palestinian flag and the Pride flag thus protected from unnecessary desecration?" Of course they are, where ya been?
An interesting, to me at least, is the SCOTUS finding about cross burning and the role Clarence Thomas played.
Enigma said…
“Next up, look up photos of the Palestine flag versus those of Jordan, Kuwait, and Sudan. Wanna burn one but not the others? How about burning the Liberian or Puerto Rican flags instead of the US flag?”
Toss the Texas and Chile flags on the hypothetical bonfire, too.
JM you could read the EO and it spells out the "inciting a riot" type conditions. You're speculation is interesting but unrelated to the actual statute which is about protecting public spaces from mobs burning things, including flags. That's why it's "consistent with court rulings" on the matter according to the WH.
"Hate speech" is a perfect example of the kind of speech that needs the First Amendment's protection. The government cannot be allow to tell you what to hate or not. That's the job of the MSM.
Love watching the Trumpers agree with John Paul Stevens. It's like when Kamala campaigned with Liz Chaney. What does anyone stand for anymore? Conservative used to lionize Scalia for a good reason. Conservatives were the ones that defended the First Amendment while the lefties equated everything to screaming fire (falsely!) in a crowded theatre.
Now the "left" loves war and the "right" defends speech regulation and the Feds buying 10% of Intel. It's commies on both sides now.
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