A commenter (Porkchop) raises a great point:
Republication of the cartoons boils down to this: Depicting Mohammed in violation of Muslim tenets strikes a blow at the very heart of Islamic beliefs, and and such sacrilegious desecration of their beliefs is so offensive and hurtful that it simply should not be allowed, even under the guise of "free speech."
Personally, I don't buy into that, but here's a question for discussion: Isn't this the same argument advanced in the United States by those who want a constitutional amendment (and implementing federal and state statutes) to ban the burning or other desecration of the flag of the United States? Can one support the right to publish the cartoons and also support a flag-burning amendment? If so, how does one distinguish between the two?
One can naturally come up with some distinctions — among other things, banning all depictions of Mohammed burdens a wider range of speech (e.g., pretty much any film biography of Mohammed) than banning flagburning would — but I think that on balance these distinctions are unpersuasive. If you want to credibly say to Muslims that they have to tolerate offense to their sacred symbols, you have to tolerate offense to your own sacred symbols, too.
Conversely, as I've argued before, allowing flagburning bans seems likely to help stimulate what I call "censorship envy": If my neighbor gets to ban symbols he dislikes, why shouldn’t I get to do the same? This kind of misplaced desire for equality of repression is a powerful psychological force.
One risk, then, is that banning the desecration of one symbol will help lead to bans on desecration of the other — allowing flagburning bans will change swing voters' views about freedom of offensive speech, or will trigger their concerns about equality, and will lead to bans on desecration of religious symbols.
Of course, it's quite possible that this slippage will be resisted — that even if there's not much of a good logical distinction between flagburning bans and bans on insults to religious symbols and figures, American politics will lead to the adoption of the former but rejection of the latter. But that itself, I think, will be harmful: Right now, when American Muslims are deeply offended by pejorative depictions of Mohammed, we can tell them: "Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too. Many Americans are deeply offended by flagburning, much as you are deeply offended by depictions of Mohammed, but the Constitution says we all have to live with being offended: We must fight the speech we hate through argument, not through suppression."
But what would we say when flagburning is banned but other offensive symbols are allowed? "We in the majority get to suppress symbols we're offended by, but you in the minority don't"? "Our offense at flagburning is reasonable but your offense at depictions of Mohammed with a bomb in his turban is not"? If you were a Muslim citizen of America, would you be persuaded by these arguments? Would you feel better about America because of them?
The First Amendment was drafted and interpreted by people who intimately understood cultural, religious, and political conflict, and who knew how calls for censorship could launch the most bitter of culture wars. The First Amendment is a truce: "I won't suppress your ideas, and you won't suppress mine." And a ban on flagburning would undermine this truce.
All Related Posts (on one page) | Some Related Posts:
- Daily Illini Fires Editor Who Published the Mohammed Cartoons:
- President of Bar Association in Pakistan, Plus Major Pakistani Party, Supports Murder of Danish Cartoonists:
- The Twelve Mohammed Cartoons, in Detail:...
- A New Cartoon of Mohammed Printed in French Paper:
- Desecration:
- He Said "Jehovah"!...
- U.S. State Department on the Cartoons Depicting Mohammed:
- Bush Cabinet Member Condemns Anti-Christian Blasphemy, and Points to Laws Restricting Incitement to Hateful Expressions:
- Suppressing Anti-Religious Speech -- an Emerging International Law Norm?
Similarly, European bans on Nazi symbolism don't really fit within our American conception of unfettered free speech, but they have their reasons for it, and it's not the end of the world.
The danger here is that radical, fundamentalist Muslims won't necessarily stop at forbidding pictorial representations of the Prophet; they seem to have a larger agenda of banning "blasphemy against Islam" of all types. Just ask Salman Rushdie.
But if the issue were simply limited to whether one can publish pictures of Muhammad, I'd have to say, there are plenty of precedents to suggest it's not the end of the world if you make one special exception. The problem in the present situation is that it wouldn't actually be just one exception.
I feel your arguement doesn't hold water. The cartoons are mere reflections of reality. Muslims bomb people because of Mohammed and Allah. They are accurate commentary and truthful. You would hide the truth for the sake of what? To buckle under meaningless violence and intolerance. Isn't this what the Nazis did leading up to the elections in Germany?
The truth needs to be printed at all costs.
There's a qualitative difference between no cows and one cow. But there's only a quantitative difference between one cow and a herd of cows. This is equally true whether the cows are sacred or profane.
One we accept the concept that there are some ideas that should never be expressed, we're already half-way down the slippery slope. Everything becomes subject to a heckler's veto. Flag burning upsets a lot of people a little. Ban it! Mohammed cartoons upset a few people a whole lot? Ban them. Both cause similar amounts of social disruption. Volume can always make up for numbers. Some European countries have started down this path and I think it's a huge mistake.
I'll clairfy my earlier caviat, while I'm at it: I don't see cause for banning either type of speech. I'm just discussing possible distinctions.
Umm, drawing and writing are not speech. They symbolize speech, just like the non-verbal act of burning a flag.
one possible difference is that flag-burning is a statement against a country, while anti-religious speech is not (in the US, at least).
Which actually argues more strongly against a prohibition on flag burning, since that is clearly political speech, which deserves the highest level of protection under the Constitution.
Why? Because Muslims simply won't see the parallel. They are unique. God has given them the truth. We see the parallel in "the flag is sacred to some, but it can be burnt. Mohommed is sacred to others, and he can be mocked. Everyone's sacred cows are fair game" and so on. But the typical Muslim would respond "the American flag is not sacred. Burning it is not blasphemy. Portraying Mohommed is blasphemy. There is no such thing as sacred to me vs. sacred to you. There is only that which is revealed to be sacred by God in the Koran." I find this depressing, but arguments that try to make parallels are probably wasted breath.
I also think it is important to distinguish between the "freedom of speech" provided by the First Amendment and the "freedom of speech" provided by other instruments including the UDHR, ICCPR, and the ECHR.
The First Amendment to the Constitution provides that:<blockquote>
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.
</blockquote>
Conversely, the other documents state:
Article 19 of the UDHR provides that:<blockquote>
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
</blockquote>
and
Article 19 of the ICCPR provides that: <blockquote>
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
</blockquote>
and
Article 10 of ECHR provides that:
<blockquote>
Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
</blockquote>
The difference ought to be obvious, in the United States, the government does not provide the freedom of speech; rather, it is precluded from abridging that which is an inherent right of men. Conversely, the International Documents, due, obviously in part to the Hobbesian framework of traditional International Law provides the right to freedom of speech.
This I think is an important distinction; for, in the United States, to preclude the ability to print, say, or otherwise distribute or receive information would be a violation of the first amendment, though not necessarily a violation of the freedom of speech as it exists elsewhere. The question is how does one define the freedom of speech, being that in the US the freedom of speech is protected rather than provided would at least suggest that such prohibition would be unconstitutional. However, if as in the European Union, the freedom of speech is provided rather than protected, such a prohibition could be legitimate as it is arguable that he who creates a right can define that which is included in that right. Whereas, when one pledges to protect a right inherent in all men as dictated by natural law, one cannot alter the definition of that which they did not create.
Imagine that a Danish paper had run a full-color image of an American flag, with instructions on how to clip the flag out and burn it. Would the folks who are praising the Jyllands Posten as free-speech heroes be campaigning to get American papers to reprint that graphic?
On a related subject, by the way, it's been reported that an artist tried to interest the Jyllands Posten in a set of cartoons lampooning Jesus two or three years ago, and that the editor said he wasn't interested because the drawings would "provoke an outcry" among the paper's readers.
As those of us with long memories will recall, back in 1977 a group of Hanafi Muslim terrorists in Washington seized the B'nai B'rith headquarters and the District Building, taking a number of hostages, in order to demand (among other things) an end to the showing of the movie "Muhammed: Messenger of God," which had recently opened in New York. (Marion S. Barry, Jr., the future mayor who was then a member of the D.C. Board of Education, was one of the hostages and took a bullet in the chest during the takeover.)
Now, in each of these cases censorship has been asked for. The major difference seems to be the violence by radicals. No one condones violence, its almost never justifiable (with self defense being an obvious exception). However what exactly is being objected to? That Muslims object to a particular portrayal? How much attention was paid to the anger of Christian groups over The Book of Daniel? It sounds a lot like the focus of people is "How DARE the muslim extremists call for a restriction of speech" rather than "Its a shame there's so much violence, why can't the Muslim groups be more tolerant of free expression?"
For the record, I'm just about as much of a first amendment free-speech absolutist as you are likely to find. I think that the flag-burning amendment is a really bad idea. That makes me a minority of one at American Legion meetings -- one reason I don't go.
I did find the suggestion that offensiveness to a "country" might be considered more serious (and therefore prohibitable) than offensiveness to a divine being (not prohibitable) a bit jarring. The priorities seem kind of skewed, but, being nonreligious and a free-speech absolutist, I don't have a dog in that particular fight.
I actually think this is a stronger distinction than you credit. While I think that a ban on flag burning is pretty dumb, it doesn't keep me awake at night because, in the end, there's about a billion other ways to get the same message across. Restricting all depictions of Mohammed seems much more burdensome on speech. I don't know about most people here, but if the Government had undertaken to affirmately ban all depictions of Christ in art in response to Last Temptation of Christ or Piss Christ (a more apt analogy), I'd be a lot more frightened than I'd be by any flag burning law.
Sometimes qualitative differences are pretty important. I'd still ban neither because I prefer my bright lines when it comes to free speech, but neither do I think they're utterly indistinguishable.
The U.S. flag is the symbol of the United States of America. By passing a prohibition on flag burning, the USA would be choosing to prevent desecration of its own symbol within its own jurisdiction.
What is the analogous position for Muslims regarding depictions of Mohammed? By having a commandment against depicting Mohammed, Islam has chosen to prevent desecration (or idolatry) of its own founder within its own jurisdiction.
But what is its jurisdiction? Within the U.S. at least, Islam's jurisdiction extends only to Muslims. That commandment has no force whatsoever when applied to me, a Mormon. On the other hand, the Mormon commandments regarding coffee or tithing have no effect on Muslims.
I certainly understand the legal distinction. America's founders, the drafters of the Constitution and the first amendment, simply reject the concept that any government "gives" rights. If it is "given," it can be taken away; that being the case, it is not a "right," but a "privilege." I think that most Americans feel the same way today. Under our view, it is simply inconceivable that anyone could or should be dependent on a government or treaty for "rights" (like freedom of speech) that, in our legal and philosophical tradition, are natural rights inherent in the individual. Maybe we should all stand up shout something like, "Wake up, Europe, and get a real constitution." :-)
Porkchop!
I must say, that you are the first person I've ever met who shares that nickname with me. How did you get it? (Follow my Url for some insight on why I have the handle I do..)
One may not agree with it, but it is certainly understandable why certain governments would limit the freedom of speech. For example, if Israel were to ban the printing of the Swastika, one would, I assume understand such a prohibition. We in the US may not agree with it, but it is not our place to tell them what should or should not be included in the protection of speech.
Also, we do rely on the government for certain rights. We do not have an inherent right to vote, we rely on the government for that right.
I restrained myself from posting a comment about reestablishing the Freeman's Oath and excluding the disloyal from our national life through this mechanism. Granted getting rid of Salvadoran commies is tempting. But there would be disadvantages.
One can, however, easily distinguish religious diversity from diversity of national loyalty (otherwise get rid of the nation).
I don't understand: are you saying that allowing speech that offends religious people encourages religious diversity (a good thing?), whereas allowing flag burning encourages loyalty diversity (a bad thing?)?
I think this turns the proper question on its head. The proper question is: Doesn't forcing a society through threats of and actual violence/murder/riots to observe the tenets of the Muslim faith (such as this claimed prohibition against depictions of Mohammed) force them to become Muslim's in practice if not in their hearts? Isn't being forced against one's will to adhere to the beliefs of another's religion "such sacrilegious desecration of the non-Muslim's religious beliefs and is so offensive and hurtful to them that it simply should not be allowed, even under the guise of "tolerance".
Put more simply, we must be intolerant of the intolerant Muslims.
Regarding the flag burning amendment, I think it is distinguishable in that a country is entitled should it so wish to protect the national symbols of that country and for which over a million soldiers have suffered and died. Its not different than a law criminalizing the vandalizing of a war memorial or the Washington monument. Its not a free speech issue at all in my opinion. Whereas the Muslim question is BOTH a free speech and free exercise of NON-Muslim religion question.
Finally, it would be a hell of a lot easier to take the Muslims protesting the cartoon serious, if they weren't so silent and accommodating of Muslims who hack people's heads off on video tape. Nothing pisses on the face of Mohammed more than this, but sadly I think Chris is right when he points out the dual nature of Muslim thinking. Whenever they talk about how Muslim's must be treated they ARE NOT talking about how non-Muslim's must be treated. We will not see the end of this dual track thinking on rights and customs, until we hear Muslim's beginning to stop saying "Treat Muslims the way we demand you treat Muslims" and start saying instead "treat Muslims the same way we Muslims treat everyone else".
Someone said above the Muslims are 200 years behind the times. I’d say that’s about right. Maybe as long as 400 years. They were also right when they said we need to start bringing them along. The way to do that is to standup to their violent blackmail instead of rewarding it with a slow capitulation. Otherwise someday we will wake up to find that living in a supposedly democratic society that is extremely sensitive to the Muslim community isn’t any different from living under a dictatorship of Sharia law.
Says the "Dog"
One cannot talk a way around the fact that supporting such an amendment tramples on other provisions of the Constitution.
And why bother? Anyone with a gnat's intelligence can tell the difference between a symbol and that for which it stands. If I step on the word Volokh, does Eugene say ouch?
Except when McCain-Feingold applies...
No... those soldiers died to protect the ACTUAL FREEDOMS... they did not die for a flag, a symbol of those freedoms to be sure... but a symbol nonetheless.
There is a HUGE difference... the difference between PRIVATE property (burning a flag that I OWN) versus PUBLIC property (vandalizing a monument that I do NOT OWN).
What a silly and transparent argument. A war memorial and the Washington Monument are public property and defacing those are crimes of trespass and destruction of public property (as would be burning the flags that fly around them, or indeed any flag that you do not own). If I buy a flag and burn my own personal property as an act of protest, no crime against anybody elses, or the public's, property has been committed.
Sheesh.
Unfortunately, you are right until the Supreme Court realizes that money does not equal speech.
It just so happens that flag burning IS political speech, so it seems that there is no problem. But the anti flag burning proposal (co-authored by Hillary, scary) is a proposed AMENDMENT, not a proposed STATUTE.
so we're not talking about what "reasonable people" thought the framers meant, because it is in the very nature of an amendment to alter the framer's meaning. at that point - unconstrained by reference to what the framers thought - can you really say that "no reasonable person" could support the amendment?
i mean, i certainly don't - but i haven't fought in any wars, and i can certainly see the reasonableness in people that have fought and love this country wanting to defend the integrity of the country's quintissential symbol. now i would tell them that they're going about protecting that symbol's integrity all wrong - the best way to protect it's integrity is to protect in the extreme the values it stands for. but their disagreement with that is not "irrational?"
and by the way, the washington monument analogy is terrible. if you had your own personal washington monument, go ahead, desecrate it all you want, but there's only one. the disanalogy is one of scarcity and rivalrousness, not one of speech interests.
So I'll ask again: What about intolerant Christians? There was a flap in Ireland around the time of JPII's death and Benedict's rise to the Papacy about the depiction by a betting company, Paddy Powers of Jesus and the others at the Last Supper as gamblers, betting, playing cards, etc. Many Christians protested this as "blasphemous" and Paddy Powers finally appologized for their "oversight."
I don't think anyone's questioning religious freedom here, nor are is anyone questioning the right to BE offended as well as the lack of a right NOT to be offended. But my question is, would there be so much outrage at the REQUEST to curtail one's speech if it were a Christian group pushing for that supression?
I think Professor Volokh's post is a good starting point afterall, the problem is that its comparing apples to oranges. So lets work on some apples to apples comparisons.
The problem with this argument is actually quite simple: using Mohammed's image is considered blasphemy because he wanted to prevent idolatry.
By prohibiting satire of their Prophet, they are in fact doing the exact opposite of his intentions.
Awesome point.
Lee
No, I understand the difference. I just don't understand why they put up with the construct they have -- something about the dignity of man and all that Enlightenment stuff, ya know.
Maybe I'm just old-fashioned (and I did grow up within a a few miles of the stronghold of the Freemen, after all). I used to drive by there a lot when I was young. I didn't know any of them myself, but some of my friends went to high school with some of them.
That position would lose 9-0 in the supreme court. Every Justice acknowledges the principle that nonverbal acts can constitute speech within the purview of the First Amendment.
As Lileks might say, it's hard to imagine a bunch of Lutherans burning down an embassy over The Last Temptation of Christ.
But my question is, would there be so much outrage at the REQUEST to curtail one's speech if it were a Christian group pushing for that supression?
The protests in the Middle East are not a "request" it is a demand. Requests by their very nature are not violent. This is violent. The cartoon depicting Mohammed with a bomb coming off of his head is wrong, but its ridiculous to drum it up to the level to which it has come.
Coming back to the issue of the post, I agree wholeheartedly with the Prof. Volokh's point. Symbolic speech is symbolic speech. One cannot be protected and other violated.
Noah
It infuriates the right people so much, that as long as it's allowed, most likely free speech is okay.
Some have said:
If I buy a flag and burn my own personal property as an act of protest, no crime against anybody elses, or the public's, property has been committed.
and
There is a HUGE difference... the difference between PRIVATE property (burning a flag that I OWN) versus PUBLIC property (vandalizing a monument that I do NOT OWN).
Yes these are valid points, but not fully persuasive. The Flag could be held to include BOTH elements of private property AND elements of PUBLIC property. A country has a right, if it so desires, to protect the PUBLIC property elements embodied in the flag.
Its against the law to destroy or deface the cash dollar bills in your pocket. You own those dollars. They are your private property. You can put those dollars in a box and pass them to your heirs pursuant to your will. They have all the indicia of private property, just as much as the chair you own or the car your own. Yet, despite the fact that they are private property there is some element of public property that is also part of those physical dollar bills, and the public property element is protected by laws making it a crime to deface or destroy those dollar bills. Same thing for the flag, if the country so chose to make it the law.
Of course we are discussing here a theory or system of freedom of speech and what things might be or could be, and to state that your private property analysis is the be all/end all of such an undertaking is a bit shallow in my opinion.
I'm kind of on the fence regarding flag burning laws/amendments. I wouldn't be upset if there was one, but I don't have a lot of time to try and make one happen either. I absolutely do not view such an action as the tragic end of free speech in this or any other country. Its not like some would seem to believe that burning the flag is the only way to express whatever political point one is trying to make.
Finally, regarding the pro McCain-Feingold property isn't speech proponents, if use of property isn't speech then how can flag burning be speech? Flag burning is the use of property for speech? How is it rational for it to be legal to burn a flag yourself, but illegal to pay somebody to burn a flag for you? Yet that is exactly the kind of argument the property isn't speech people must make. If property isn't speech, then how could it be improper to have a law that says one can't spend money to acquire or build a printing press capable of printing more hand bills in a day than the average hand operated printing press? How is limiting money on TV spending different from limiting the money that can be spent on bigger better hand bill printing presses?
Says the "Dog"
I think the property distinction works pretty well for protected speech.
*N.B. Factory flaw, not an artist/human being's rendition/depiction.
I suggest you go back and read Texas v Johnson, Cohen v California, Cox v Louisiana, Gibboney Storage, Kovacs v Cooper, Saia, Tinker v Des Moines, Street v New York and Halter v Nebraska.
No less than 25 separate Justices have held that the 1st amendment does not protect all nonverbal expression in all circumstances.
No less an absolutist than Hugo Black, Mr. "No Law means No Law" himself scoffed at the notion that the 1st Amendment protects flag burning, or any other type of arson or burning. If Hugo Black doesn't think the 1st amendment protects something, chances are it doesn't. His opinion in Street v NY is perfectly on point. Liberals such as Earl Warren, John Paul Stevens and Abe Fortas agreed with him. Not to mention conservatives like Rehnquist, O'Connor and Thomas. It's a bipartisan agreeement.
As Brother BLACK said:
It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense. It is immaterial to me that words are spoken in connection with the burning. It is the burning of the flag that the State has set its face against. "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." Giboney v. Empire Storage &Ice Co., 336 U.S. 490, 498 (1949). In my view this quotation from the Giboney case precisely applies here. The talking that was done took place "as an integral part of conduct in violation of a valid criminal statute" against burning the American flag in public. I would therefore affirm this conviction.
I couldn't have said it any better.
If you read Halter the SC was 8-1 that statutes regulating how a flag is used, displayed or mutilated(including burning) are Constitutional and that court included Holmes and Harlan and the only dissenter was the author of the infamous Lochner case, Peckham.
I accept the Texas v Johnson decision but I still think it was wrongly decided(especially since the flagin question WAS NOT private property, it was stolen from a bank). At this point Stare Decisis concerns might lead me to uphold it but I'd do it on a de minimis approach and not extend it any further. If it was overruled I wouldn't shed any tears.
No I was just saying that it was arguable (though I don't argue it) that since one can imagine a nation limited to one race or one religion you could imagine a nation limited to one national loyalty.
Nations were invented in the 1640s to end the Thirty Years War. As a human creation they can be designed in different ways. One could imagine a country like the US restricted to those who were loyal to a country like the US. Oath takers. Not blood or faith but idea. A voluntary association.
Or you could drop the idea of a nation state entirely and replace it with intermixed affinity groups co-existing in different legal regimes. That's been done before too.
I find it troubling that where the only substantive question is the reaction of the group that is the subject of the speech, and where both groups react negatively to that speech you place a higher emphasis on violent reaction. No one condones or justifies violences. I doubt it can be argued that the muslim reaction has been temperate in the slightest.
Nonetheless it seems clear from others posts such as:
Call me unpersuaded by the argument that one cost of a flag burning amendment (which I really don't care about either way) is that we can no longer say to Muslims "We allow all sorts of desecrations, not just those that offend Muslims."
Why? Because Muslims simply won't see the parallel. They are unique. God has given them the truth. We see the parallel in "the flag is sacred to some, but it can be burnt. Mohommed is sacred to others, and he can be mocked. Everyone's sacred cows are fair game" and so on. But the typical Muslim would respond "the American flag is not sacred. Burning it is not blasphemy. Portraying Mohommed is blasphemy. There is no such thing as sacred to me vs. sacred to you. There is only that which is revealed to be sacred by God in the Koran." I find this depressing, but arguments that try to make parallels are probably wasted breath
not to mention:
that some posters seem to feel that it is muslims themselves and the very nature of Islam that justifies printing the cartoons. In other words, that those cartoons purpose is to make them mad and that's a good thing, no remorse, no nothing. Its not about the violence for some people, its about the fact that the Muslims object to it at all that causes some people to be interested.
To me, it sounds like Professor Volokh was on target - the feeling is that offensive speech is permissable so long as the individual being offended is someone else and if they complain about it they're whining. If you get offended though you have every reason and justification.
Don't think I'm condoning violence though. I think the cartoon story is a legitimate exploration of freedom of speech. But I think the REAL story is the muslim overreaction not who is or is not printing the cartoons or that muslims are offended. Of COURSE they're offended, that's the point!
Says the "Dog"
In this country, until 1989, flagburning could be penalized. Now are you telling me that prior to 1989 this country was some dictatorship? During the Civil War period, when the nation fought to preserve the Constitution, flag burning was a capital offense.
Was this nation not free prior to 1989? Was there some "chill wind" blowing all throughout the 20th century? Please.
The SC has long recognized the difference between conduct and speech. Burning is conduct. If you asked 1000 people on the street, 999 would say burning is conduct. Justices as varied as Holmes, Harlan, Moody, Fuller, Day, White, Black, Warren, Fortas, White, Stevens, Blackmun, O'Connor, REhnquist and Thomas have all recognized it.
Do I think it's worth an amendment? Probably not. But amendments in response to SC decisions go all the way back to Chisolm, which I happen to think was correctly decided.
No offense, but you completely misunderstood my point and I reread my post - the misinterpretation wasn't my fault. My point wasn't that all symbolic expression was protected, it was quite clearly that something is not excluded from first amendment protection merely because it is nonverbal speech.
Every justice agrees that the nonverbal character of a form of expression does not automatically exclude it from protection.
Very original quip about the U.S. reports, though.
Are we talking about the fictionalized Mohammed, the "prophet of peace", or the historical Mohammed, who spread Islam at the point of a sword, and who hacked off no small number of heads himself? Because I've long thought one of the problems we've got here is that the Jihadists aren't perverting Islam, and they know this quite well. It's the "live and let live" Muslims who are on shaky ground, theologically speaking.
You're getting really worked up about a speech/conduct dichotomy that doesn't exist. Some verbal acts are not "speech" for first amendment purposes and some nonverbal acts are "speech" for those purposes. For goodness sake, drawing a cartoon is a nonverbal act.
And philosophically speaking, a vast amount of nonverbal conduct has expressive elements to it (dance, a sit in, giving someone the finger).
If you asked those 1000 people on the street whether that "conduct" of flag burning also "expressed" an idea, I bet you'd get close to 1000 yes's as well. The expression is precisely the thing that people find objectionable. People don't burn flags for heat, in the privacy of their own homes, or in place of fireworks on the 4th of July. People burn them to express something.
Like I said, read Justice Black's opinion in Street v NY. Hugo was the GREATEST defender of free speech the SC has ever known. NO ONE was more forthright in protecting the 1st amendment and even Black acknlowledged that flag burning is not protected.
It's not the expression at all. You can curse the flag all you want. You can say whatever you want about it. You can write whatever you want about it. But you can't set fire to things just because you feel like it.
Again, Justices from Black to Thomas to Warren to Fortas to White to Stevens to Holmes to Harlan to Jackson have ALL recognized this fundamental difference.
But I guess when it comes to the 1st amendment, they were all wrong. Hugo Black was really some radical dictator who didn't respect the Bill of Rights and the 1dt amendment. When someone says Hugo Black is all wet regarding the 1st amendment, in my view the burden is on them and it is a heavy one, to prove him wrong.
Is burning, say, a UCLA Bruins teddy-bear (no offense to the host) protected speech too?
My point is that the no member has a court that just because something is nonverbal that it lacks expression and is therefore outside the ambit of first amendment protection. My point is not that any conduct containing words is protected.
If there is an answer to that, point me in the direction of a case. If you do not answer that point, I will assume you are in dialogue with someone else.
JGR,
I think scalia might have a good point. Fighting words are still speech within the meaning of the first amendment. They just enjoy a lesser degre eof constitutional protection. They can be regulated as long as they are viewpoint neutral. This is in contrast to obscenity, which is not considered speech.
Again, per Justice Black:
It is immaterial to me that words are spoken in connection with the burning. It is the burning of the flag that the State has set its face against. "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute."
Per Justice Thomas:
Accordingly, this statute prohibits only conduct, not expression... That the First Amendment gives way to other interests is not a remarkable proposition.
Justice Souter:
Concern about employing the power of the State to suppress discussion of a subject or a point of view is not, however, raised in the same way when a law addresses not the content of speech but the circumstances of its delivery. The right to express unpopular views does not necessarily immunize a speaker from liability for resorting to otherwise impermissible behavior meant to shock members of the speaker's audience
Justice Harlan:
MR. JUSTICE HARLAN, concurring.
The crux of the Court's opinion, which I join, is of course its general statement, ante, at 377, that:
"a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."
I wish to make explicit my understanding that this passage does not foreclose consideration of First Amendment claims in those rare instances when an "incidental" restriction upon expression, imposed by a regulation which furthers an "important or substantial" governmental interest and satisfies the Court's other criteria, in practice has the effect of entirely preventing a "speaker" [391 U.S. 367, 389] from reaching a significant audience with whom he could not otherwise lawfully communicate. This is not such a case, since O'Brien manifestly could have conveyed his message in many ways other than by burning his [flag].
Chief Justice WARREN:(speaking for 7 Justices)
We cannot accept 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...This Court has held that when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.
Mr. Justice JACKSON, concurring.
I join the judgment sustaining the [Texas statute because I believe that burning a flag] conflicts with quiet enjoyment of home and park and with safe and legitimate use of street and market place, and that it is constitutionally subject to regulation or prohibition by the state or municipal authority. No violation of the Due Process Clause of the Fourteenth Amendment by reason of infringement of free speech arises unless such regulation or prohibition undertakes to censor the contents of the expression... It treats the issue only as one of free speech. To my mind this is not a free speech issue. 1 [Texas] has in no way denied or restricted the free use, even in its park, of all of the facilities for speech with which nature has endowed the appeliant. It has not even interfered with his inviting an assemblage in a park space not set aside for that purpose. 2 But can it be that society [334 U.S. 558 , 569]has no control of apparatus which, when put to unregulated proselyting, propaganda and commercial uses, can render life unbearable?
Justice GOLDBERG:
From these decisions certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy... One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon [burning a flag] in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have [379 U.S. 536, 555] the duty and responsibility to keep their streets open and available for movement...
We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as [burning the flag], as these amendments afford to those who communicate ideas by pure speech. See the discussion and cases cited in No. 49, post, at 563. We reaffirm the statement of the Court in Giboney v. Empire Storage &Ice Co., supra, at 502, that "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed."
The disagreement is whether flagburning is symbolic speech absolutely protected by the 1st amendment. Hugo Black, Earl Warren, Byron White, William Rehnquist, Clarence Thomas, John Paul Stevens, and Sandra Day O'Connor were on one side. You're on the other.
It's not really the biggest deal. Texas v Johnson was not up there with say Brown or McCulloch v Maryland as some landmark decision. I think it was wrongly decided. I think there's ample precedent to support that. But do I lose sleep over it? Not really.
Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. 2 There are certain well-defined and narrowly limited classes of speech, the prevention [315 U.S. 568, 572] and punishment of which has never been thought to raise any Constitutional problem. 3 These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 4 It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 5 'Resort to epithets or personal abuse [or flagburning] is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U.S. 296, 309 , 310 S., 60 S.Ct. 900, 906, 128 A.L.R. 1352.
We are unable to say that the limited scope of the statute as thus construed contravenes the constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. Cf. Cantwell v. Connecticut, 310 U.S. 296, 311 , 60 S.Ct. 900, 906, 128 A.L.R. 1352; Thornhill v. Alabama, [315 U.S. 568, 574] 310 U.S. 88, 105 , 60 S.Ct. 736, 745. This conclusion necessarily disposes of appellant's contention that the statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. Cf. Fox v. Washington, 236 U.S. 273, 277 , 35 S.Ct. 383, 384.8
Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that ["America we spit on you" and burning the flag is conduct] likely to provoke the average person to retaliation, and thereby cause a breach of the peace
And from Mr. Roe v Wade and Callins v Collins himself:
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK join.
I dissent, and I do so for two reasons:
1. Cohen's absurd and immature antic, in my view, was mainly conduct and little speech. See Street v. New York, 394 U.S. 576 (1969); Cox v. Louisiana, 379 U.S. 536, 555 (1965); Giboney v. Empire Storage Co., 336 U.S. 490, 502 (1949). The California Court of Appeal appears so to have described it, 1 Cal. App. 3d 94, 100, 81 Cal. Rptr. 503, 507, and I cannot characterize it otherwise. Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a consequence, this Court's agonizing over First Amendment values seems misplaced and unnecessary.
I went back and read his comments, and I see that after mentioning "fighting words", he immediately added "You have no right to engage in conduct that's likely to incite a riot". This is indeed different from the impression my of my post (Apologies). It would seem to suggest that one could burn a flag at an anti-American rally or another place where it wouldn't be likely to incite a riot. But you couldn't do it on Main Street (even if burning were otherwise legal, which I doubt it would be).
You are absolutely, positively, not listening. I am not saying that it is clear that flag burning is protected in every context. I've never said that.
And, not that this was ever my point, but the conclusion you're trying to draw from justice black - that he's saying that flag burning does not contain an expressive element - is self-evidently NOT what he's saying. I can't believe I'm taking the time to go through this with you, since you keep brazenly ignoring my repeated request to answer my question, but the Black quotation above says:
that does not say that flag burning does not have an expressive element. it says that the constitution does not furnish protection to that expression when that expression is associated with conduct proscribed under a valid criminal statute (which is circular logic, but I hardly want to focus the discussion there at this point)
i don't know what you're talking about with the thomas quote. he wasn't on the court in johnson. if you'd care to provide context for the excerpt rather than sneak it by me, i'll be happy to address it. the context is not self-evident from the quotation. i'm not doing your work for you.
this is quite tiresome. justice souter's quote also doesn't say that flag burning doesn't have an expressive component:
Concern about employing the power of the State to suppress discussion of a subject or a point of view is not, however, raised in the same way when a law addresses not the content of speech but the circumstances of its delivery. The right to express unpopular views does not necessarily immunize a speaker from liability for resorting to otherwise impermissible behavior meant to shock members of the speaker's audience
I don't think this merits explanation. He's plainly saying that the fact that there is expressive content in an action does not immunize the expressor from liability.
I'm not continuing to go through this. Jackson isn't saying that flag burning is not expressive; he's saying that the restriction did not regulate the expression in it.
Warren quite plainly admits that there are both expressive and nonexpressive elements; he just holds that when the interests in regulating the nonexpressive ones are sufficiently weighty, the expressive ones can be regulated alongside them.
This is tedious. If you really do understand the issue as I've framed it, you know you're misquoting authority.
I just realized what a dirty move you just pulled with the thomas quote. I'm at the gym so I can't explain now, but that's his dissent from VA v. Black, which was the cross burning case.
I remember that he definitely said that his argument that cross-burning did not have an expressive component was LIMITED to those instances where cross burning was used to intimidate.
I'm normally not this combative, but I'm actually going to take the trouble to find the quote where he expressly rejects your position in the opinion you're quoting.
Why did you do that?
The issue is whether the expression is covered by the first amendment. In my view, and Hugo Black's for that matter, burning a flag is NOT expression covered by the 1st amendment. But I guess you're more protective of the 1st amendment than Hugo Black.
The Thomas quote is from VA v Black. I assume you disagree with his dissent and would hold that cross burning is protected by the 1st amendment. Flag Burning and Cross Burning are on the same page in my book. The 1st amendment is not a license to set things on fire.
I understand your view of the 1st amendment perfectly. I just think it's wrong. When it comes to the 1st amendment, I'll go with Hugo Black, Earl Warren, Byron White, Abe Fortas(who wrote the Tinker opinion BTW), John Stevens, Bill Rehnquist, Sandra Day O'Connor and others.
Do you agree with Thomas' dissent? How would you have come down in Virginia v Black?
It may well be true that other means of expression may be less effective in drawing attention to those ideas, but that is not itself a sufficient reason for immunizing flag burning. Presumably a gigantic fireworks display or a parade of nude models in a public park might draw even more attention to a controversial message, but such METHODS of expression are nevertheless subject to regulation.
These cases therefore come down to a question of judgment. Does the admittedly important interest in allowing every speaker to choose the METHOD of expressing his or her ideas that he or she deems most effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value. The opinions in Texas v. Johnson demonstrate that reasonable judges may differ with respect to each of these judgments.
The individual interest is unquestionably a matter of great importance. Indeed, it is one of the critical components of the idea of liberty that the flag itself is intended to symbolize. Moreover, it is buttressed by the societal interest in being alerted to the need for thoughtful response to voices that might otherwise go unheard. The freedom of expression protected by the First Amendment embraces not only the freedom to communicate particular ideas, but also the right to communicate them effectively. That right, however, is NOT ABSOLUTE - the communicative value of a well-placed bomb in the Capitol does not entitle it to the protection of the First Amendment. [496 U.S. 310, 323]
From US v Eichman. Of note, Roberts was on the brief for the US in that case.
I have a very big problem with what you keep saying, no longer because you disagree with my point, but because you've revealed yourself to assume authorship over the opinions you cite. There are a full 14 paragraphs in between the two sides of the ellipsis you provide in your post above, and everything in between them quite plainly contradicts what you are trying to insinuate by omitting that text. That's deceitful.
I'm not going to drone on about this, so I'm going to confine myself to Thomas. And I'm going to address your point - whether certain justices think flag burning is constitutionally covered speech - rather than my original point, the repeated ignoring of which I will not belabor, since you finally acknowledge it in your last post.
You quote this in support of the proposition that Thomas would consider a flag burning amendment unconstitutional:
Accordingly, this statute prohibits only conduct, not expression... That the First Amendment gives way to other interests is not a remarkable proposition.
This is actually the first paragraph of the opinion:
Although I agree with the majority’s conclusion that it is constitutionally permissible to “ban … cross burning carried out with intent to intimidate,” see maj. op., at 17, I believe that the majority errs in imputing an expressive component to the activity in question, see maj. op., at 17 (relying on one of the exceptions to the First Amendment’s prohibition on content-based discrimination outlined in R. A. V. v. St. Paul, 505 U.S. 377 (1992)). In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means. A conclusion that the statute prohibiting cross burning with intent to intimidate sweeps beyond a prohibition on certain conduct into the zone of expression overlooks not only the words of the statute but also reality.
Contrary to what you are implying for reasons that I still don't understand, VA v. Black only said that it was constitutional to punish cross burning with the intent to intimidate
In the process of making this holding, the Court said (expressly the argument I made):
It is true, as the Supreme Court of Virginia held, that the burning of a cross is symbolic expression. The reason why the Klan burns a cross at its rallies, or individuals place a burning cross on someone else’s lawn, is that the burning cross represents the message that the speaker wishes to communicate. Individuals burn crosses as opposed to other means of communication because cross burning carries a message in an effective and dramatic manner.2
The case is complicated and about some evidentiary presumptions, but Thomas took issue with the notion that cross burning with THE INTENT TO INTIMIDATE was expressive. He makes it quite clear that he would not sustain a flat ban on cross burning.
Shame on you for knowingly implying that thomas would support a flat ban on flag-burning. He wouldn't even sustain a flat ban on cross-burning.
There are answers to all your other remarks, ,but given this episode, I'm not inclined to answer them.
You are completely wrong. In Thomas' opinion, it is clear that cross burning is DE JURE intimidation. It ALWAYS has an intent to intimidate. There IS NO expressive quality to it AT ALL. It wasn't limited at all. It was very broad. There is NEVER an expressive component to cross burning that implicates the 1st amendment. One can never claim the protection of the 1st amendment when it comes to cross burning.
Although I agree with the majority's conclusion that it is constitutionally permissible to "ban ... cross burning carried out with intent to intimidate," see maj. op., at 17, I believe that the majority errs in imputing an expressive component to the activity in question(IE, THERE IS NO expressive component. None. Zero. Even if you burn a cross without an intent to intimidate, you can still be prosecuted becuase you have intimidated. You're intent is irrelevant.)
Accordingly, this statute prohibits only conduct, not expression. And, just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point. In light of my conclusion that the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests.
The plurality, however, is troubled by the presumption because this is a First Amendment case. The plurality laments the fate of an innocent cross-burner who burns a cross, but does so without an intent to intimidate. The plurality fears the chill on expression because, according to the plurality, the inference permits "the Commonwealth to arrest, prosecute and convict a person based solely on the fact of cross burning itself."
IOW, the 1st amendment is not involved with cross burning. Even though some idea is expressed through cross burning, that idea is not protected by the 1st amendment. The 1st amendment does not cover all expression.
I see the flag burning law the same way. It addresses only conduct. In my view, there is no expressive component in flag burning, or at least certainly not one that implicates the 1st amendment.
We just differ, no big deal. You think flag burning laws as in Johnson and Eichman are unconstitutional. I don't. The world will go on.
I am going to try to settle this. I doubt it will work, but let's see. Omar, I believe I am correct in saying that your objection and other people's objections to flag-burning as protected speech is that it is the action of burning the flag which is legislated against and not the message expressed. This is completely false.
I wonder how many people in this forum were either Boy Scouts or members of the U.S. military. I was a Boy Scout. I went all the way to Life Scout and then lost interest in it. The reason I bring this up is that at one of the summer camps I attended I witnessed a flag-burning. This would obviously appear like a very weird thing for Boy Scouts to do, if you did not understand the context. The flag that was burned was very worn and had been determined to need disposal. So, at this summer camp, I witnessed the proper disposal of a tattered flag. I might say it is a very moving experience. The words at ceremony express the reverence that all in attendance held for the flag and its need for respectful destruction.
The procedures for the disposal of the flag are laid out in the rules of the military. At a ceremony of the disposal of an unservicable flag the commander will state:
"Comrades, we have presented here these Flags of our Country which have been inspected and condemned as unserviceable. They have reached their present state in a proper service of tribute, memory and love.
"A Flag may be a flimsy bit of printed gauze, or a beautiful banner of finest silk. Its intrinsic value may be trifling or great; but its real value is beyond price, for it is a precious symbol of all that we and our comrades have worked for and lived for, and died for-a free Nation of free men, true to the faith of the past, devoted to the ideals and practice of Justice, Freedom and Democracy.
"Let these faded Flags of our Country be retired and destroyed with respectful and honorable rites and their places be taken by bright new Flags of the same size and kind, and let no grave of our soldier or sailor dead be unhonored and unmarked. Sergeant-at-Arms, assemble the Color Guard, escort the detail bearing the Flags and destroy these Flags by burning. The members shall stand at attention."
And the end of the ceremony the flag is burned. I must tell you it is a very moving.
Here is a link to the U.S. military's website on disposal of a tattered flag.
While you and I will rightly say that burning the U.S. flag is both immoral and stupid means of protest (since you are burning the symbol of the country that allows you to burn that symbol), the law against burning a flag is not regulating the conduct, but the message that is expressed. If it were regulating the conduct, then this ceremony would be impossible. You and I both know that an anti-flag burning statute is regulating the message.
Noah
So you think that if there was a law that said Cross Burning is banned, regardless of one's intent to intimidate, that Thomas would strike it down?
How so, when Thomas said that the intent is ALWAYS to intimidate. The act itself is DE JURE intimidation. Cross Burning can never be done without an intent to intimidate.
BTW, I notice that you've failed to address that Thomas opens his opinion by explicitly coupling it with the flag burning case and approvingly cites Rehmquist's dissent to frame his argument and lay it out. I find it hard to believe that he'd explicitly couple the two and cite Rehnquist's dissent if he thought Rehnquist was wrong in that case.
I'm not sure how you can shoehorn the flag burning rationale into this threat rationale though. If someone were prosecuted because she burned a flag in an attempt to threaten an armed serviceman with violence or something like that, i certainly wouldn't say that the burning was constitutionally protected.
but when the burning is to convey a message of opposition, that strikes me as core protected speech - its a quintissentially political message. I don't care how many people it offends.
It's not regulating the message at all. Johnson could have cursed out the flag. He could have spewed invective against it for as long he wanted. The state couldn't regulate his message. They can regulate how he chooses to deliver it. Could Johnson and a few of his buddies gathered around and defecated or urinated on it to express a message? Could they have roasted a pig on a spit above it an emptied its entrails on to it? It was the action that was penalized. And even if he burned the flag in praise of it he could still be penalized. The reason why he burned the flag was irrelevant.
Your Boy Scout and Military article has no relevance either. Of course in certain instances the flag can be burned if it's for a certain purpose and procedure. It's because there's a whole process and the flag is so important that that's the only way to give it respect. The TX statute didn't proscribe flag burning in toto. IE, the Boy Scouts could still burn the flag in their cermonies under the TX law.
It's because the falg is considered dead at that point and the burning is part of a "funeral ceremony" for it. Just like, if someone dies and levaes it in their will or even no explicit instructions, the family can have them cremated. In certain conditions, buring a human being is legal. But if you just walked up to someone on the street and lit them on fire, you'd be on trouble.
Again, I'm not saying that falg burning is required to be illegal. But I don't think it's a right protected by the 1st amendment. I do think the state and Congress can regulate how it is to treated within limits, as Justice Black points out in Street v NY.
This is the coupling you're talking about:
In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred, see Texas v. Johnson, 491 U.S. 397, 422—429 (1989) (Rehnquist, C. J., dissenting) (describing the unique position of the American flag in our Nation’s 200 years of history), and the profane. I believe that cross burning is the paradigmatic example of the latter.
Yes, he couples them together, but I think the idea that he means to imply that statutes prohibiting the burning of both would be equally constitutional to be beyond untenable.
Oy, fine, I'll lay out what Thomas says:
(1) the history of cross burning is to intimidate
(2) a statute that prohibits intimidation prohibits conduct, not speech
(3) to the extent that cross-burning intimidates, it is not speech and should not be addressed under first amendment cases
(4) ok, if you guys (the majority) insist on analyzing this under first amendment doctrine, the statute does not require that intimidation automatically be attributed to the defendant on the basis of cross burning; it's just an inference that can be overcome by an evidentiary showing that the burning was not meant to intimidate; in that case the statute does not apply, alleviating any due process concerns
theres some more reason's but they're not important here.
Thomas says, over and over and over again, that the entire REASON the statute proscribes conduct is PRECISELY because it only criminalizes cross burning that is intended as a THREAT. Now he certainly believes that is the status of most cross burning, but he takes extraordinarily pains to say that a state cannot punish someone burning a cross that does not intimidate.
If you could show Thomas that the intent to burn a cross was not to intimidate, he would say you were protected. So unless you could show him that burning a flag was meant to intimidate, he's been QUITE clear that hes going to uphold the statute.
he's been quite clear that he thinks the burning is protected.
Do you seriously believe that any of the modern constitutional jurisprudence of flag burning has anything to do with an analogy to a (ex) human being's status as "dead?"
Johnson wasn't prosecuted because he opposed Reagan. He was prosecuted because he burned the flag. He could have burned the flag because he liked Reagan and he still could have been prosecuted.
It's not me who links flag burning with cross burning. It's Thomas. He calls the flag sacred. He explicitly links it with cross burning. He cites Rehnquist's dissent.
Why would he do all that if agreed with Brennan's opinion? It's reasonable to conclude that Thomas agreed with Rehnquist's dissent.
Intimidation has an expressive component. When Thomas says there's no expressve component. He doesn't mean there's no expressive component per se, he means there's no expressive component that implicates the 1st amendment. I don't know if I'd go that far and hold that flag burning is never protected. I don't think Thomas would either. If someone burns a cross in their basement or in their backyard out of view of others or as part of some movie or play, I don't think he'd say that that wasa criminal act. Likewise, if you burn a flag in your backyard I wouldn't vote to convict. But a state can set rulse regarding its use.
I also think the "juris privati" somewhat applies and that by virtue of being the flag it has an inherent public character to it that grants the govt the ability to regulate to a reasonable degree. The American flag can never be simply private. Even if you buy it at a store, it still has a public quality that separates it from say, a flag from another country or a flag that has a Steelers logo or some generic flag. I see little difference between Johnson and O'Brien.
And don't tell me that it's ok to ban a flag from being used commercially but it's illegal to prevent it frmo being burned. Using a flag commerically also expresses a message. I don't really see a distinction. If Halter is good law, Johnson is bad law.
Simply, whatever expressive component is involved in flag burning in my view, it doesn't implicate the 1st amendment. If TX passed a law that Flag Burning is illegal only when it criticizes the govt, then you'd have a 1st amendment issue because in that case it's expressly clear that one's beliefs are the reason for the statute. This TX law had no relationship with one's beliefs.
"The TX statute didn't proscribe flag burning in toto. IE, the Boy Scouts could still burn the flag in their cermonies under the TX law."
This statement makes your whole argument ridiculous. If they proscribe flag burning in toto, then the flag burning that they do proscribe is an attempt to limit someone's speech.
Your funeral argument is also wrong. You are right that the ceremony is like a funeral, but that does not change the fact that it is the burning of a flag.
Finally, you are wrong on the Texas statute. The Texas statute did not prohibit the burning of a flag. It prohibited the "descration of a venerated object."
You may be right that some objects in society should not be held up to be descrated, but if you are trying to say that any burning of a flag was and should constitutionally proscribed, you are just plain wrong.
Noah
The texas statute prohibited the "desecration of a venerated object."
The virginia speech prohibited burning of a cross in order to intimidate.
Thomas's entire rationale is that the plain terms of the virginia statute assure that prosecutions are limited to nonexpressive conduct. On the other hand, I think its pretty clear that "desecrating of venerated objects" defines a set that includes stuff that conveys messages.
If you don't agree with that, then it seems sort of pointless to keep talking to eachother, so we should probably stop. I do not appreciate your attempt to misrepresent Thomas in Black.
He cite's Rehnquist's dissent in other places as well.
"In holding [the ban on cross burning with intent to intimidate] unconstitutional, the Court ignores Justice Holmes' familiar aphorism that 'a page of history is worth a volume of logic.' " Texas v. Johnson, supra, at 421 (Rehnquist, C. J., dissenting) (quoting New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921)).
Now, Thomas opens his dissent with the EXACT SAME quote that Rehnquist used to open his dissent in Johnson. He prefeaced it by explicitly coupling the flag and the cross. He called the flag sacred.
Given that, I'd say the burden is on you to show that Thomas would say the burning is protected. I think it's clear he wouldn't. Burning a cross isn't protected. he explcitly links it with burning a flag. Ergo, burning a flag isn't protected. I don't think it's a coincidence that Scalia didn't join him in that dissent, and that Thomas didn't join Scalia's dissent part 3 where he says that Black's conviction should be overturned because it was possible that he burned the cross without an intent to intimidate.
In the end, we simply disagree. We both agree that burning a flag invovles expressive conduct. I don't think the first amendment protects that expressive conduct(the burning, not the message behind it), you do. The 1st amendment does protect expression, but it does not protect all forms of expression. I think you misread my earlier comment. The 1st amendment does protect expression in the abstract, but it does not protect all forms or instances of expression in practice. That's what I meant to say and I think all 9 Justices would agree with that.
It'd be interesting to see where Thomas would come down on say a Nazi march in Skokie or Brandenburg or something like that that also had an intent to intimidate. In the end, I think he let his personal views affect his opinion somewhat.
Let's say someone burns a cross on the highway without an intent to intimidate and he's convicted. Would you give him 1st amendment proection since there was no intent to intimidate?
I know you didn't address your last question to me, but I am going to answer. Yes.
Thomas's opinion was only that the intimidation factor in cross burning that be legislated against, not the act of cross bur