The Volokh Conspiracy

Amazing!: that polling question violates pretty much every basic rule of polling: there is extraneous information in the question, the yes/no answer choices give specific narrow reasons associated with them, and it is factual incorrect. It's about as legitimate as polling the issue with the following:

"Three Yale students have been arrested on charges of arson, reckless endangerment and other crimes for allegedly burning the carpet of the president's office as a political statement. Two of the students are not U.S. citizens. None seem remorseful for their actions."

Should carpet burning be a crime?
Yes. Carpets are extremely important sources of comfort and deserve protection.
No. What the students did is unfortunate, but they are protected by the First Amendment.
I'm not sure. I need more information.

Apropos of the debate over public funding of abortion, if there's a constitutional right to burn a flag, perhaps the government should be required to give you one to burn.

Funniest damn thing I'd seen in a long time.

Yeah, because house-endangering criminal vandalism is just hilarious.

The whole point is that it is serious when you light someone else's home on fire in the middle of the night. There is nothing wrong with charging them with arson and reckless endangerment when they committed, well, arson and reckless endangerment. The fact is that you are being lenient on them only because this is a "political story." If they had simply lit the porch on fire, no one would be jumping to these thugs' defense.

Random Commenter, I didn't mean the book was being thrown at them because the police and prosecutor disagreed with teh college student's politics, I meant this story has become a political story.

Joe Jackson how many arson/recklessness endangerment charges have you seen filed in response to flaming bags of poop on someone's doorstep?

Since neither you nor I knows how many "flaming bags of poop" there actually are, or how many flaming bags are reported to the authorities, or how many such bags start fires large enough to threaten the safety of the building, or how many perpetrators' identities are actually known to the police, your comparison is pretty lacking.

Did they commit the elements of the crimes? It appears so. Should they be charged? Yes. Does the fact that they were making an anti-American political statement shield them from responsibility for their otherwise criminal (and dangerous) actions? Not a chance.

And ABC News should be a little more careful in its reports.

I wouldn't consider a "polling pop-up" to be a "report". I searched the ABC News site and the only report they have about this incident is an AP story. I suspect that someone in the "stir-up-some-ad-generating-controversy" department asked one of the tech folks to put up a quick "polling" question and that person just glanced at the story before writing the intro.

P.S. As far as stirring-up-controversy skills go on this story, Fox has ABC down cold.

What a prosecutor charges someone with and what the eventual deal(or sentence) is are two different things. One could argue that had the defendants been charged with throwing a flaming bag of dog feces on a porch, the likelihood of their claiming that they were acting on political principle (or of the story receiving much coverage) would be small, so a modest charge might be the quickest way to a prompt and fair resolution of the matter. On the other hand, if the defendants want to play to the grandstand and pretend that their conduct was somehow noble, it might take a relatively greater threat of punishment to bring them to the bargaining table.
Would this be just an unremarkable example of applied game theory or selective prosecution on political grounds?

> Before I am able to judge the seriousness of this crime, I would need to have some sort of sense of that question.

How about we attach a flag to the front of your residence and set it on fire?

I find it interesting that no one has commented on the fact that the "youths" were interfering in someone else's political speech. Aren't there federal statutes about that? Or, do they only apply when political speech by the correct people is obstructed?

Rick,

What you are describing is recklessness (which, in contrast to negligence, is already extreme), not intent, which exists when the act has "consequences that the actor desires and believes or knows will occur." Intent, as it is typically defined, is not merely creating an unreasonable risk of certain consequences occuring, but requires either (1) desire and belief or (2) knowledge that consequences will occur.

If the prosecutor is going off of your theory (that recklessness can become intent) he better have some support in Connecticut case law that suggest such an unusual definition of intent is used in that state. Otherwise, he is behaving unethically.

Andy Freeman,

How about we attach a flag to the front of your residence and set it on fire?

This is an assholish response. Do you think all crimes should be treated the same, regardless of the dangers they pose? That the specifics of the incident are unimportant? If that is your a position, then your a moron in addition to being an asshole.

I find it interesting that no one has commented on the fact that the "youths" were interfering in someone else's political speech. Aren't there federal statutes about that? Or, do they only apply when political speech by the correct people is obstructed?

It is not typical for every criminal incident to become a federal case. Imagine that a heated political discussion becomes a bar fight. Likely, there has been some interference with political speech by someone. Should all such bar fights become federal cases?

Remember the Rodney King incident? That didn't become a federal case until after the locals acquitted the police officers on state charges.

It probably is good policy to allow local communities to handle routine criminal incidents. Here, the students in question are charged with a felony (either inappropriately Second Degree arson or appriopriately Reckless burning -- both of which are felonies) along with three misdemeanors (reckless endangerment, criminal mischief and breach of peace).

Steve,

Good point.

Rick Wilcox,
Besides confusing reckless indifference and intent, as has already been pointed out by Viscus, you also got the flaming bag of poop story wrong.

The article you linked to says;

Police are investigating and have listed the case as arson.

So contrary to what you claimed, they have not filed arson charges (and I'd bet money they won't). They are investigating it as Arson. But they'll wind up charging it as a misdo, or at most something akin to the reckless burning charge listed above.

Title 18, U.S.C., Section 241 makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).

A cross-burning would seem to qualify. How about burning someone else's flag?

Connecticut has "castle doctrine" laws which allow deadly force to be used to protect property from arson.

A person who possesses or controls property or has a license or privilege to be in or on it is justified in using reasonable physical force when and to the extent he reasonably believes it to be necessary to stop another from trespassing or attempting to trespass in or upon it. The owner can use deadly physical force only (1) to defend a person as described above, (2) when he reasonably believes it is necessary to prevent the trespasser from attempting to commit arson or any violent crime, or (3) to the extent he reasonably believes it is necessary to stop someone from forcibly entering his home or workplace (and for the sole purpose of stopping the intruder) (CGS § 53a-20).

Viscus: You may agree or disagree with Andy Freeman's response, but no need to resort to epithets or vulgarities.

EV,

Your probably right. But then, when someone suggests a flag should be burned on my lawn, I can get a little annoyed.

>Private parties are free to "interfere" with political speech so long as they don't break any laws in doing so.

How about some specifics supporting the theory that the burning itself, ignoring any political/civil rights angle, wasn't a crime? Why wasn't it vandalism, if not reckless burning.

> Best to know what you're talking about before playing the Evil Liberal Conspiracy card.

Good people demanded that the feds get involved in cross-burning, and the cross in question was rarely owned by the folks being terrorized and often wasn't attached to their house. Do those two differences make this less of an issue?

Or is it the presumed sentiments of the flag owner that make the difference?

Suppose that the burners thought that the flyers were of the "take back the flag from the right-wing" persuasion and burned the flag to teach them a lesson. (In other words, the burned now are good people and the burners are bad.) Would this incident then rise to the required level?

Viscus is arguing that since the house didn't catch on fire that it's no big deal.

Apparently, you can't read. I don't suppose there is anything to be done about that.

If the house actually caught on fire, the crime would have been worse. In the sense that it had worse results. I also think that whether it actually catches on fire helps us judge how dangerous burning the flag was vis a vis the house (was burning the flag, given its position and the situation, reckless given the chance that the house would catch fire).

If there had been no risk at all to the house, then not even a charge of Reckless burning, much less Second Degree arson would be warranted. Reckless burning requires danger to the building of another, not just their chattel.

Even without a charge of Reckless burning, a class D felony or even arson, the act of burning someone else's flag on their property is a serious crime. Just not as serious.

But I suppose this all goes over your head. I suppose you are going to willfully insist that it is my position that burning someone elses personal property is "no big deal." Or that this was ever even a reasonable intepretation of anything I said.

Look there are several questions here and we need to separate them.

Q1: Did the students commit a crime? Should they be punished or disciplined for it?

Yes, and Yes.

Q2: Should the students be treated any differently then they would have been had if they had lit a fraternity flag or an old towel left handing from the front of the building on fire?

I think the answer here is clearly no. Even if it isn't well established constitutional law it seems that increasing the punishment for these kids because you don't like the political/unpatriotic message their crime sent isn't much different than simply punishing them for the views they espouse. If one wouldn't punish the outraged patriot unsafely burning his neighbors disgracefully torn flag on the neighbor's porch (equally unsafely) to the same degree this is a clear cut failure of content neutrality. Yet surely we shouldn't punish the outraged patriot more than the college kids burning their neighbors frat flag.

Q3: In fact are these kids being treated more harshly because it was a flag that was burned.

This is the least important of the questions so far and the one we have the least evidence about but it seems to be where the debate has hung up. If I had to guess I would say yes. Both the politicization and the flag burning aspect certainly encourage the prosecutor to file stronger charges and I very much doubt arson charges are usually filled for burning a frat flag. If so I would argue, and anyone who has been convinced by Eugene's arguments for the legality of flag burning should agree, that the prosecutors are behaving badly.

Note that nothing above depends at all on what you think the punishment for burning things on a neighbor's porch should be. The whole discussion about whether this sort of behavior is a serious offense or if people would like things burned on their porches simply doesn't matter. The question is whether these kids are being treated like anyone else who burned something on a neighbor's porch not whether you agree with how such offenders are usually treated.

--

As an aside I'm still generally worried that punishments for criminal offenses are often increased or decreased based on the defendant's beliefs and expressions. It seems clear that finding Satan (even in a peaceful Anton LeVay style) is less likely to get you parole than finding Jesus. I would like to know why this isn't a constitutional violation (pragmatics?). Either way it bothers me.

What is interesting is not the temptation to treat burning the American flag as worse than burning something else, but the undertone that, since it was the American flag, they should be treated more leniently. If they aren't, why we're just those stump-toothed redneck jingoists.
It would appear, if there were any intimidation, it would be the implicit message that this is what happens when you hang an American flag on your porch. Other flags are common, Mexican and Irish around here, university flags on the homes of alums, fraternity flags in college towns. But they chose to burn an American flag. Come to think of it, you could probably get away with burning an Irish flag, too, but a Mexican flag torched would bring the hate-crimes crowd down on you.

Nah, Viscus was wrapping the flag around his head as a veil to preserve his ignorance about the danger of lighting objects attached to one's house on fire. He only reacted sharply because when others attempted to pierce that veil, he got poked in the eye.

Bill Poser. You're probably right on the law. But you miss the "other information" which is that it was only the American flag they chose to burn. Of all their choices.
Legally, that would not make much difference, but if I were to have a conversation with these clowns, I'd want to know why that flag and not another.
I can think of them as buttheads, or anti-American buttheads, by their actions, whether or not their action is covered by law.

Bill Poser, I think a case can be made that burning the flag in itself 'oppresses' the flag owner's free exercise of his right of expression, since it stops his displaying that flag. Also, destroying his property implies future destruction of his property under similar circumstances, which is a threat.

If you outlaw flag burning, only criminals will burn flags.