A Shrewdness of Apes

An Okie teacher banished to the Midwest. "Education is not the filling a bucket but the lighting of a fire."-- William Butler Yeats

Wednesday, June 28, 2006

Flag amendment goes down in flames

In a minor triumph of common sense, the Senate failed to approve the flag-burning amendment by one vote yesterday. I believe this amendment is not only unnecessary but a violation of the spirit of the First Amendment. Burning the flag is a hateful action, but a protected action that happens maybe three times a year. The point of the First Amendment was not to protct popular speech, but to protect unpopular speech.

When you burn my flag, you offend me. But my offense does not justify the abandonment of wise principles embodied in the Bill of Rights. This is why we also have to occasionally tolerate people parading around in sheets and other political and yet offensive behavior.

But you know, someone has spoken of this issue far better than I ever could. From Quaker Dave's blog:
Most of the time, when we see a flag being burned on television, it's being done in some other country. For some reason, somebody over wherever gets mad at us, and out comes a ratty looking faux flag and some lighter fluid. This happens most often in places like, well, Iran. Did you know that no democratic nation on earth has a law in place banning desecration if its own flag? Most other countries don't, either. Know which ones do? Iran, for one. You can burn an American flag there, but you will be in a whole lot of trouble if you burn an Iranian flag. It's illegal - and probably really dangerous - to burn a flag in Communist China. Same in Cuba. Iraq had a law like the one now being debated here under Saddam. Nazi Germany banned flag desecration, too. That's it. Now, I really don't like the idea that our country would be added to that short list if this proposal became law. Do you?

And in answer to those who claim that our fallen soldiers fought to protect the flag, I would simply say that I think they also fought to protect our way of life and our Constitution-- at least that's what my dad told me his reasons were. We are one of the few nations on Earth that allows people the freedom to speak as they wish, so long as they are not physically harming someone. Every time we have abrogated these principles-- John Adams and the Federalists in an attempt to stifle political debate in 1798, the Wilson administration during World War I-- the verdict of history has been opprobrium.

Do not grandstand with the American flag. It is too precious for that.


At 6/28/06, 1:28 PM, Blogger quakerdave said...

look out! You posted me twice!

At 6/28/06, 2:05 PM, Blogger Michael S. Class said...

The first federal Flag Protection Act was passed by Congress in 1968 in response to protest burnings of the flag at demonstrations against the Vietnam War. Over time, 48 of the 50 U.S. states also enacted similar flag protection laws as well. All of these statutes were overturned by the Supreme Court of the United States by a 5-4 vote in the case Texas v. Johnson, (1989) as unconstitutional restrictions of public expression.

After the Johnson decision, Congress quickly passed a new Flag Protection Act, which was also struck down by the Supreme Court the following year by the same 5-4 majority in the case U.S. v. Eichman (1990). The Court decided that expression through flag burning was constitutionally protected.


Ruling in an important First Amendment case, Virginia v. Black, (2003) the U.S. Supreme Court said that states may outlaw acts of cross burning.

At 6/28/06, 2:29 PM, Blogger NYC Educator said...

It's unfortunate that pols need so badly to divert our attention from what's really happening in this country. For one thing, unlike the 60s, no one is even burning flags.

People are dying in a war based on a lie, the country is mortgaging the future of my child to give billionaires unconscionable tax breaks, and this is the game our Congress feels it needs to play.

At 6/28/06, 2:50 PM, Blogger "Ms. Cornelius" said...

Fixed it, Dave. It's weird blogger thing. Claims it can't contact blogger, then posts it twice. Grr.

Michael, thanks fo the info. Very cool! The History Geek is thrilled!

Unfortunately, I am not sure about Virginia v. Black lasting as a precedent, since it held Virginia's statute unconstitutional, even though it said that states COULD ban cross burning. From http://www.oyez.org/oyez/resource/case/1600/:

"Does the Commonwealth of Virginia's cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, violate the First Amendment?

"...Yes, but in a plurality opinion delivered by Justice Sandra Day O'Connor, the Court held that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form, in which three other justices joined. Justice Antonin Scalia left the latter portion of the Court's conclusion to argue that the Court should vacate and remand the judgment of the Virginia Supreme Court with respect to Elliott and O'Mara, so that that court could have an opportunity to construe the cross-burning statute's prima-facie-evidence provision. Justice David H. Souter, joined by Justices Anthony M. Kennedy and Ruth Bader Ginsburg, concluded that the Virginia statute is unconstitutional and therefore concurred in the Court's judgment insofar as it affirmed the invalidation of Black's conviction. Justice Clarence Thomas dissented."

So to me, it seems a mixed bag. I am not a lawyer, so if anyone can help me out here, that would be great.

NYC: Exactly! To me, this is a cheap diversionary tactic to distract the populace and try to acquire the veneer of "patriots."

At 6/28/06, 8:07 PM, Blogger DCS said...

Excellent post. Your last two sentences say it all.

At 6/28/06, 9:47 PM, Blogger elementaryhistoryteacher said...

With regards to the case cite you were pondering over the difference there is intent. Cross burnings are intended to intimidate a particular person or group. When a flag is burned it is not usually done with an intention to intimidate. It is done as a statement such as "I'm frustrated, I'm mad at my country", etc.

At 6/29/06, 12:45 AM, Anonymous MellowOut said...

I was flipping channels today and paused on Nancy Grace's "show" on CNN. (Not on purpose. The dog needed to go outside.) She was talking about how terrible it was that the amendment was struck down, and shots of people burning the flag were being shown in the background. All of a sudden, she blurted out something along the lines of, "Turn it off! I can't stand to watch those disgusting acts." (Of course, this was just her way of going to commercial.)

I thought about it. I don't agree with people burning the flag. However, when I see examples of it from people within the U.S., I am not sickened or disturbed. Mostly, I am reminded of a debate I had with a college roomate over the subject and how I made her mad by saying I would defend anyone's right to burn the flag. When I see footage of flag burning by protesters, I thank my lucky stars I live in a country where you can do that without being arrested.

On the other hand, I think it's a pretty childish action. It's almost on par with burning an opposing high school team's mascot or a fake player in effigy the night before the big game.

At 6/29/06, 10:36 AM, Blogger "Ms. Cornelius" said...

Dear EHT, actually michael brought up cross burning in his comment. In my post I only referred to those periodic "parades" the KKK and other hate groups get to put on. My point was, no matter how odious, wrongheaded, insane, repugnant, evil, foul, or loathesome I find these parades, I believe the First Amendment still protects these sorry hounds' right to yap so long as they remain peaceful.

I do not consider the flag burning and cross-burning equivalent for the very reason you cite-- one is obviously a threat, while the other is simply offensive. I was not very clear about the difference in my response-- thanks. i was thinking about michael's point merely as a precedent for whether the Virginia v. Black pertains as a limitation to the First Amendment.

Of course, if this "Flag Desecration" amendment were to pass, and be ratified, it would CHANGE the meaning of the First Amendment, and indeed the entire flavor of the Constitution. And that's something we should never do lightly-- and certainly not to try to score electoral points.

At 7/1/06, 7:08 PM, Blogger Xpatriated Texan said...

An interesting factoid I found while researching this topic: In the Netherlands, it is illegal to burn a foreign flag, but not their own flag. It seems the tiny country at some time in the past decided that allowing people to burn other countries' flags might lead to an invasion. Apparently, they aren't that worried about self-invasion.


At 7/2/06, 9:34 PM, Blogger "Ms. Cornelius" said...

Wow, that's cool....


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