Here's a press release from Missouri Rep. Jo Ann Emerson (which I found on the States News Service, May 6, 2009, but is also available here) (emphasis added):
A resolution authored by U.S. Rep. Jo Ann Emerson (MO-08) is getting bipartisan support in the U.S. House of Representatives for a constitutional amendment to prevent desecration of the American flag.
"The American flag is more than a symbol, especially to the American men and women who have served in uniform, putting their lives at risk for our country with the flag stitched on their sleeves. People who desecrate our flag don’t fully understand, and certainly do not respect, the service of these Americans in defense of our freedoms," Emerson said.
She also pointed out that, while the First Amendment protects free speech, it offers no protection for hate speech.
"When a flag is burned or desecrated, especially by another American citizen, a severe injury is inflicted on the patriots of this country who have served us and by those who have lost a loved one," Emerson added.
The proposed constitutional amendment is one sentence: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."
Regarding the prospects for her measure’s passage in the U.S. House of Representatives, Emerson said, "I think there is a lot of support for this idea in Congress, among veterans service organizations in our country, and by the American public. Before the Supreme Court invalidated flag protection laws in 1989, 48 U.S. states and the District of Columbia had measures on the books. I would very much like there to be an opportunity to restore that much-needed sanctity to our flag. It’s a symbol of every American life spent or lost in the service of our country," Emerson said.
Since the 1989 Supreme Court ruling in the case of Texas v. Johnson, all 50 states have passed memorializing resolutions asking Congress to pass a constitutional amendment and to send it to the states for ratification.
Of course, neither the First Amendment nor the doctrine that the Court has developed under that amendment, has any exception for "hate speech." One would hope that members of Congress would at least know constitutional law — or have their staffs look it up — even if they don't agree with it.
But I think this also helps illustrate the dangers of "censorship envy," and of creating new constitutional exceptions, especially for ideas that some find repulsive. Rep. Emerson seems to think the supposed constitutional exception for hate speech supports her proposed new exception. I take it that she also expects that some of the readers of the press release will take the same view. And why not? Once you conclude that hateful expression about this or that group is punishable, you might feel yourself like a dupe to tolerate expression that you see as hateful to the nation and the symbols you cherish. It's hard enough to tolerate offensive speech, harder still to tolerate offense when others aren't required to do the same.
Say, though, that a new First Amendment exception for flagburning is indeed recognized. Then the censorship envy I describe above will likely operate in reverse: There'll be still more pressure to recognize a "hate speech" exception in earnest. Once the law concludes that hateful expression towards America or the flag (even a narrowly defined sort of hateful expression) is punishable, others might feel themselves like dupes to tolerate expression that they see as hateful to their race or religion or ethnicity or sexual orientation or what have you.
And even if those people are defeated in their attempt to create a new "hate speech" exception — if an exception for anti-American symbols is recognized but by an exception for anti-Muslim or anti-black or anti-gay or what have you symbols is not — they will be understandably upset by what they'll see as unfair treatment. Instead of uniting us around a symbol, the amendment would divide us further.
In any case, I wrote about this some years ago, but the principle seems to me to remain the same. But now some members' willingness to make certain expression unprotected is compounded by a Congresswoman's ignorance about what expression actually is protected.
Related Posts (on one page):
- What the Framers Supposedly Thought of Symbolic Expression:
- Flag Desecration and "Hate Speech":
However, if flag burning bans lead to hate speech bans, then this would not be worth it at all.
Another point here is that the proposed amendment could have unpleasant side-effects from a federalist point of view as well. The first amendment is incorporated but the anti-flag-burning amendment is not, making Congress, and the Federal Government uniquely responsible for regulating this form of speech. If a similar hate speech amendment was passed, then presumably the states would be barred from regulating it but the federal government would not be.
I don't like the trend here.
pdf
Uh oh. I just did it, didn't I? < hides from the cops >
BURN BABY BURN!
There's no constitutional problem with prohibitions on the burning of pretty much anything in public. It's a hazard, it pollutes, etc. So here's what you do:Subject to an as-applied challenge? Sure. But not facially invalid!
Given that the offense would almost certainly be a felony, it makes the price of civil disobedience pretty high.
"Hell, it's not just a crime, it's a crime against the Constitution! Throw the book at him. Put him under the jail."
Can't we have a Constitutional Amendment that all True Flage be woven from asbestos?
Second, I've always found it interesting that the US Code specifies that burning a flag is the preferred method of disposal...
If this wasn't a Congressperson, I'd suspect satire.
First, would a felony-level punishment for burning the flag pass a substantive due process challenge/4th amendement guarantee?
Secondly, exactly what conduct could Congress regulate? I would think it would be narrowly defined to an official American flag design on a medium customarily used for display on a flagpole, and that it would be narrowly confined to actual physical desecration. Thus spiting at (but not spitting on), cursing at, giving the finger to, blaspheming, etc. would still be solidly inside the purview of Johnson and Eichman.
Also in this case, the physical desecration of an American flag would probably include urination on an official cloth American flag but not drawing a flag (50 stars, 13 stripes) on pavement with red, white, and blue chalk and then urinating on that chalk, burning flag-themed paper napkins, wearing flag-themed clothing, etc, or even burning a 48-star, 11-strip banner otherwise similar to an official American flag.
Also I note that public display of virtual desecration (virtually burning computer-generated graphics of an American flag) would be outside the scope of this amendment. However, all of the above cases are outside the idea of physical desecration of an American flag (either are not official American flags, or are not physical desecration of them). However, I doubt this would prevent charges from being filed in some jurisdictions.....
Heck, I am not even sure it would cover burning of a 13-stripe 50-star "American Flag" with moderately visible color modifications (purplish tinge to the red, beige instead of white, lighter blue etc).
As-applied challenges, here we come.....
Couldn't Congress define the official US flag as woven from asbestos, and all others are just cheap, unofficial replicas? No Constitutional amendment necessary, and flag burning becomes a non-problem!
Substitute the F-word with Flag. Examples:
Flag off.
Go flag yourself.
I really want to flag her.
And most importantly:
STAY THE FLAG AWAY FROM OUR CIVIL LIBERTIES.
Locke's argument tries to get away from the 'eye of the beholder' issue inherent in 'desecration', exactly because he wants to deny any particular religious group the power to define what practices may be mandated, allowed, or prohibited. Rather, he suggests, states may only regulate behavior (1) in general terms, and (2) with a non-sacred justification. As you all recall, he chooses the killing of calves (golden, or not!) as his example.
If the government were to forbid the 'sacrifice' of calves, Locke maintains, this would be an improper exercise of state power. After all, everyone else could kill calves for supper without complaint; only those who thought there was something sacredly significant about the death of calves would suffer under such a law.
However, a state might well pass a law banning all killing of calves for non-sacred reasons. Locke suggests, for example, that after a major epidemic among cattle it might be prudent and appropriate for the state to ban the killing of calves until the population had recovered. Such a law would indeed put an end to calf-sacrifices in the Church of the Holy Bovine -- but this church would no longer be singled out because of the meaning it attributed to the act of calf-killing.
Following Locke's logic -- which (IANAL) seems to describe current practice pretty well -- it may well be illegal to burn a flag outside near dry grass in the summer in California, because it's illegal to burn anything under such circumstances. The 1st-amendement inspired flag burner will enjoy no protection.
But in circumstances that allow the burning of other things, the burning of flags because the flag is especially meaningful can not be forbidden.
The same logic would apply to all forms of 'desecration' -- itself a term that can only defined in terms of the mental states and private value-systems of the people acting on or observing the acting on a flag.
Looking at it this way also highlights the contrapositive predicament that any imaginable flag-desecration statute would raise: if I take an old flag and decide that the proper way to dispose of it is by burning, but my neighbor looks out and says "desecration", has a crime been committed, or not?
Has this really been a favorite activity of the left in the last 40 years or so?
Rouffle's link was quite interesting. However you write this:
Justice Stevens at least suggests that this WOULD be desecration in his dissent in Eichman. I got that from reading the link :-).
Yes, this "left" flag burning thing has been very popular lately. They put out the fires with tea last month.
Well, if the burning is done to honor the flag or country, then it's not a crime. But if the burning is done to protest the flag or country, it is a crime.
(But we're not regulating speech, just conduct.)
The Party of Small Government strikes again!
So if a flag with 11 stripes and 1 star is outside the purview of the amendment, what about a flag with, say, 53 stars and 11 stripes. Can Congress regulate that through this amendment?
And incidentally, the proper method of disposing of a flag which is worn out, damaged or in danger of capture is to cut it into strips, then burn it.
Liberals love our country. It's the conservatives who are talking secession.
1) Does it reduce the scope of the First Amendment, or does it merely grant a new power to Congress?
a) If so, does this mean that as-applied or even facial 1A challenges to flag burning laws on the basis of free expression would be available? What standard would be used to judge such challenges?
b) If not, and it merely grants a new power to Congress, is there any possible law written under it that would pass Constitutional muster?
2) If we go back to the idea that flag burning laws are not per se Unconstitutional, doesn't that mean we are back to the mess of laws and decisions prior to Johnson and Eichman? Wouldn't this substantially limit any enforcement? I.e. woudn't decisions like Street and Gaugen still stand?
It may be that wise societies have learned to keep a few laws on their books that are basically harmless and whose real purpose is so that people in rebellious modes can break them and not some law that really matters. Perhaps such laws help keep the peace and having them results in a better society overall, and less violent modes of expressing the occassional rebellion and angst that may be perhaps simply be a part of being human, than not having them.
There may be such things, and this could be such a law. I don't know. But the people do have the power to amend the constitution to put it in effect if they want.
It seems a fact of life that human beings are sometimes irrational. Perhaps laws that are sometimes irrational and take into account the occassional irrationality of being human may be more suited to humans than laws are always rational, and don't take the way people actually are into account..
Does this mean you don't believe in rational basis review?
Emerson, keep your but off my Bill of Rights.
I don't know. It would be an offense worthy of it's own Constitutional Amendment. That sounds like pretty high powered stuff to me.
As far as your suggested challanges and difficulties, I agree. This could become another "Full Employment For Attorneys Act."
I wasn't being entirely serious, but yeah.
The anti-flag burning diversion is as timeless as they come. It ties up great minds from tending to watching the real machinations of governement, and of the powerful, it serves the purpose of divide-and-rule and remains great sport for those that foist this same shopworn chimera, time and time again.
The good news is, that it is a tell, so that we know something very sneaky and underhanded is presently going on, so we should watch with intense scrutiny, wherever they obviously don't want us to.
I would agree with you except that I haven't seen this reach the mainstream news yet. If it is intended to be a diversion, it is evidence that the congressmen involved are entirely incompetent even at creating PR diversions.
Well, Rachel Corrie burned one in 2003 and it didn't seem to hurt her popularity among leftists.
The law makes distinctions based on intent all the time. I imagine a jury would be asked if the Liberian flag was being burned to make some kind of statement about Liberia, or whether the intent was that the viewers take it as hate speech towards Americans even though it was not literally an American flag. The jury would then consider the context of the flag burning and, most likely, rule that it was.
If it looks like I'm threatening to burn your store down, but I just say "it would be a shame if anything happens to this store" and don't literally make any threats, I'd generally be convicted of extortion anyway. The court would decide that my words are a threat in context.
Would such a prosecution really fall within the hypothetical power of Congress to "prevent the physical desecration of any American flag?"
Also at what point in your analysis would hate speech law come into play? After all the proposed amendment doesn't actually include any text specifically restricting freedom of expression, does it?
It depends on what we mean by "rational basis". If the question is whether the law's subject-matter might ("rationally") be related to a state interest, ("Does this law cover a subject that has some relationship with the subject of (e.g.) interstate commerce/domestic relations?"), yes. If the question is whether the law itself is a good or "rational" law law, no. Such a test would be an ideology test. The world doesn't perfectly conform to any single ideology yet devised, and continues to surprise people. Laws have to deal with the world, including human psychology, as it is. If one has a somewhat more expansive view of "rational" that acknowledges that people are sometimes irrational and the reach of legislation subject to limitations, and it's sometimes more rational to accept the situation than to try and order it out of existence by fiat, than there's no problem. (In other words, laws are rational if they work, whether or not they conform to ideological principles.) Sometimes such an approach involves getting rid of legislation, but sometimes it involves accepting legislation.
Justice Roberts called it the elephant whistle problem. I have this whistle that makes elephants go away. How do I know it works? There aren't any elephants around, are there?
I would suggest our elephantine whistle-blower is not necessarily as irrational as Chief Justice Roberts appears to think. Elephant whistles are very cheap, while the cost of getting trampled by elephants can be very devastating. And it's hard to determine causality for rare events empirically. Even if the probability that they work is very low, it might well be cost-effective to pay that low premium for the possibility of insurance against a rare but extremely costly casualty. In particular, if the elephant whistle once worked -- if blowing it actually scared the elephants away at some point even in the distant past -- then it's simply not irrational to think it might still work and to pay the cost of keeping it in repair and blowing it periodically.
In the Voting Rights Act Case, Justice Roberts argued that an era of wholesale racial discrimination in voting is gone forever and can't possibly return, the probability of return is zero, it's simply irrational to think that it could return, so the idea that these Voting Rights Act laws are keeping it from returning is just as irrational as believing in elephant whistles.
How does Justice Roberts know that the probability of racial discrimination returning in the future is zero? So far as I know sitting on the Supreme Court confers no prophetic, clairvoyant or oracular ability, and in fact Justice Roberts is just as ignorant of what will happen in the future as the rest of us. His belief is merely a guess, a guess influenced by his ideological leanings and general outlook. In my view, his guess isn't necessarily any better than anyone else's. Since the problem actually happened in the past and has occurred more than once in multiple human societies, and since long-vanished problems sometimes return, it might come back. And it's reasonable to think the laws helped the problem go away the last time. So there's a non-zero probability the problem might return in the future, and a non-zero probability the laws help keep it away. In other words, in my view, the laws have a rational basis and so long as the rational basis test applies. It's for Congress to decide whether the racial elephant has so little likelihood of return that it's no longer worth the cost of keeping the elephant whistle in repair. When things depend on a guess about what the future will bring and nobody really knows, representatives accountable to the people should be the ones who bear the risk and responsibility of making the best guess they can and quite possibly being wrong.
Chief Justice Roberts may feel so absolutely certain about the future that he may genuinely perceive what other people think irrational, but in my view this perception of irrationality is simply a reflection of strong feeling and emotional certainty. It's not the kind of "irrational" that I think the rational basis test is about.
I realize that when I've brought up the elephant whistle problem in the past (without the benefit of Chief Justice Roberts' colorful metaphor), it's generally been to argue for a rational basis for laws favored by conservatives and suggest that the subjective perception of certainty liberals have that these laws make no sense may not be the case. (For example, I've argued that sexual morals laws may have "elephant whistle" characteristics with respect to obscure but devastating diseases, imbalances of power between the sexes, and various other social problems.) The advantage of the present case is that it permits seeing same principle at work when the law involved is one favored by liberals and the people who feel subjectively certain it's irrational are conservatives. The underlying principles are the same.
In my view, judges should be very careful to avoid imposing their own beliefs or their own guesses for legislature's on subjects such as predictions of the future which can't actually be known. Because I think elephant whistles aren't irational -- problems we're sure have gone away forever have an unfortunate tendency to recur, and solutions and changes we think permanent sometimes turn out to be temporary -- and the question involved is simply a matter of degree or setting a cutoff point based on ones best guess, in my view elephant whistle type laws pass rational basis as a general matter, and it is for the legislature and the legislature alone to decide whether we've reached a point where elephants will never return and the whistle can be safely dismantled, or whether the whisle should be kept in repair a while longer.
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