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The question of whether flag burning is a crime in america

Presser and I had expressed opposing views on this topic in print--I had, in fact, quoted him invidiously in my column against thge amendment--and our disagreement spilled over into the following e-mail exchange.

A question for you to ponder: Why was it that Earl Warren and Hugo Black both believed that protecting the flag did not run afoul of the First Amendment? Black was the strongest defender of the First Amendment who ever lived.

What is it that you and the opponents of the Flag Protection Amendment know that he did not? I'll see your Earl Warren and Hugo Black with Antonin Scalia and Anthony Kennedy and observe that, although the Supreme Court does have the last word, neither it nor its members are exactly infallible.

The justices both left and right have all at one time or another seemed more than willing to justify their notions or preconceptions with astonishingly thin constitutional claims.

In that, they are human. Your statement that we cannot long endure as a society without a law to protect U. Where is the evidence for it? What have we seen in the 9 years since Texas v.

This Is Why It's Legal to Burn the American Flag

I actually believe that the polling on this question, while accurate to a point, suggests a level of passion or interest in this subject that does not truly exist. To put it another way, when you put the poll question to people, yea or nay, they will support flag protection, but it's not an issue that very many people spend much time thinking about or worrying about. And the failure so far of Congress to enact the amendment has not disillusioned and enraged the public to any measurable degree.

The public, by and large, has other things on its mind. I think you would also agree that it wouldn't be too hard to create a series of poll questions that would show the majority of Americans favoring a number of positions and laws that you and I would agree are unconstitutional. We don't have a separate concurrence from Scalia so we can't be sure exactly what his reasoning is, so he's not going to help refute Warren and Black.

Kennedy's opinion is not exactly a model of clarity, and seems to be the same sort of "on the one hand on the other hand" balancing that he and Justice O'Connor often go in for. I don't find it very helpful. This is not, I think, a balancing-type issue -- it's a question of defining what the First Amendment is supposed to cover.

I think so too, so does Feinstein. That's what I meant in the piece on the CFA's website, where I suggested other acts - spray-painting the Washington monument, taking potshots at the President, that might have an expressive component, but are acts regulable by law none the less.

It’s a grand old flag—here’s why the right to burn it was affirmed in 1989

It's not balancing, but it's where you draw the line, and even if you see defacing monuments as different from desecrating the flag, it's a matter of degree rather than quality, in my opinion.

Another point along those lines I've made in several pieces is that if this is about drawing a line between acts and speech, and if this an issue of great national interest and it must be if forty-nine state legislatures have actually requested Congress to send on the Amendments -- by the way that's never happened in the history of the republicwhy not let the American people draw the line by passing the Amendment?

That brings us to what a believe would be your strongest argument, if I subscribed to it. That is the notion that if one punishes a flag desecrator one punishes him because of his particular political sentiments, and that a country that wants to remain free shouldn't punish on the basis of political sentiments.

The problem I have with the argument is that it confuses "political sentiments" with the requisite motive to punish anyone under a criminal statute. When we're punishing prohibited acts - murder say, or arson - we don't ask if the perpetrator did it for particular political sentiments, we ask if he the question of whether flag burning is a crime in america she intended to perform the prohibited act with the requisite statutory intent.

If flag desecration is an act designed to cause outrage and possible breaches of the peace on the part of viewers, than you punish the motive to cause outrage and possible breaches of the peace, not the political sentiments. Motive is everything in the criminal law - we punish premeditated murder, but not acts of self-defense - the state of mind is crucial. A desecration statute would be no different. None of the proponents of the Flag Protection Amendment I know wants to abridge freedom of speech in any way.

The Amendment is not an attempt to amend the First Amendment or the Bill of Rights, it's an attempt to bring Constitutional law back to what it was in 1989 before the Supreme Court misread it. We weren't a repressive society before 1989, and we won't be if the Amendment ever passes.

I agree completely that the Constitution should only be amended for momentous issues, but I do see this as one, and that brings me to your charge that rankles a bit, that I believe the republic will crumble if this Amendment doesn't pass. That's not exactly what I said, first of all, but perhaps you could make the point with journalistic license.

When that baseline erodes, when that foundation crumbles, we are left with license, not liberty, and we're in a place similar to Rome in its decline. We're not there yet, but I do think one can make a strong case that we're on the way. The Supreme Court's opinions in Johnson and Eichman are symptoms of a view of law that self-indulgence is all the Constitution is about -- a problem in many other opinions as well.

If that view continues to be the dominant view in Constitutional law we are, I submit, in real trouble, and eventually the underpinnings of the Republic will erode to a very dangerous point. The Flag Amendment alone won't stem the tide, but it will represent a step in the right direction, I think.

The court has long held in other matters that conduct may constitute a form or speech or expression -- to wit the case back in the 30s about flying a red flag.

I don't the question of whether flag burning is a crime in america it's honest to toss into the mix that "taking potshots at the President. Some legislator puts up a bill and the other legislators, reading their polling data, see no percentage in voting against it. What was the great national reaction last time this amendment died the death it so richly deserved? You toss murder and arson into the discussion, tempting me to do my best Reagan chuckle and say "There you go again.

Let's take this argument from you: It is a terrible flag and stands for rotten things. I would spit on the flag if I had one here!

I would defecate upon it. I would tear it to shreds and dance a Russian jig upon it! He would not be trying to cause outrage or a breach of the peace, after all. I actually do agree with you that the connection between rights and responsibilities is important and society needs that. But even though "civility" is desirable, the First Amendment doesn't limit us to civil expressions that cause, perhaps, a bit of upset for the listener but no real outrage.

It's true that the Supreme Court has held that some acts constitute speech, and I'd go even further and say that at some level all speech is acts. Still, you can draw lines, until 1989 flag desecration was on the "act" side of the line, and I think that's where it belongs.

I have to admit that I don't find it easy to persuade anyone hostile to the amendment on this point, and I've come to the conclusion that one takes a position on this issue as a matter of the heart rather than the head on both sidesbut let me try again. If you listen to the testimony of most of the medal of honor winners and the gold star widows and the veterans, you understand that the flag, for them, symbolizes not only everything that's good and liberty-loving about the society, but most specifically the reverence that we have for the self-sacrifice of the men and women who've given their lives or limbs for their country, so that the rest of us might enjoy our precious freedoms.

The one in which I debated a law professor about flag burning

They believe that something that's precious about the America they grew up in is that the law protects the flag from those who would destroy it in a manner calculated to enrage and insult them and the sacrifice of their loved ones. If their laws cannot condemn and punish those who set out to do evil in this manner, they have trouble understanding what the sacrifice was for, and trouble understanding why they should ever want to sacrifice again.

Try convincing a World War II or Korean War veteran that he or she should fight in order to protect the right of a Wisconsin teen-ager to defecate on the flag. Johnson means the act is protected by the First Amendment. They simply can't believe the Supreme Court did what it did.

People of our generation find this hard to grasp, and so does Justice Brennan and his majority of five, apparently. Brennan says the flag stands for the right to burn it, and the proponents of the amendment think it does not. You are absolutely right that the First Amendment doesn't limit us to civil expressions.

The speech that's protected by the amendment can be downright uncivil, but even then reasonable time place and manner restrictions apply. Or, I would hope that your view that responsibilities are as important as rights would eventually lead you in my direction on this issue.

This is not simply an issue for politicians. In fact, my experience is that politicians actually prefer to shy away from the Flag Amendment, because every time one comes out in favor he's pilloried by a press unanimous against it. It's very much a people's issue. It's true that the Citizens Flag Alliance has been leading the way, but their support comes very much from the grass roots. Are we getting any closer to agreement?

Smith from making his expression is pretty horrifying. It has no logical--reasonable--underpinning.

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It is no step at all from that premise to the one that says my hypothetical lunatic on the streetcorner saying bad things about the flag ought to be muzzled as well. And not too far from that to the idea that, say, the Ayatolla was right to issue the fatwah against Salman Rushdie. You--or rather Dan Polsby, for this is his formulation--seem very comfortable with the idea that we can draw a neat little line around the American Flag and that will be that.

I see it as the thin end of a bad wedge, the nose in the camels tent and all other relevant cliches precisely because there is only emotion, not logic behind it. It is "a matter of the heart," but only on your side.

I love the flag too. Fly it on many occasions.

Five Things to Know About the Case That Made Burning the Flag Legal

Your stories about gold star widows and veterans are moving to me--but so is the story of the Vietnam Vet POW who testified against the amendment by saying that when his captors tried to torment him by showing him pictures of hippies burning the US Flag and saying "look what kind of country you live in," responded, "Yes, look what kind of country I live in.

Reasonable time place and manner restrictions on burning of symbolic objects or any objects could easily exist if they were content neutral. There is an old cold war era joke about the Soviet and the American arguing about whose country is better. Is there no amendment that might be supported by 70 percent of the public that you would raise your voice against, or is this the standard by which you judge appropriate political action worthy of your support?

And lastly, on a practical level, what is "the flag? But there are American flags in all forms everywhere--on your Tribune masthead, for instance. What if he does so while chanting or just thinking, "Burn, you no good flag!!! Photographs of the flag?

Flags with 49 stars and 12 stripes? Drawings of a flag? And what language would we use to define desecration? Perhaps we're not as far apart as I thought. On the other hand, maybe we are. It all comes down to whether you think burning, defecating, urinating, or otherwise defacing the flag is speech. If you do, you take your position, and that's that. And you're certainly not alone in that. But if you take speech as something with a clear content and something more than, as Rehnquist called it, an inarticulate grunt, you might be closer to the view of the proponents of the Amendment.