Flag burning/Cross Burning: Both expression?

Just as an aside to this discussion, I think it fascinating to look at the way in which "political correctness" is becoming the new political incorrectness.

I cannot comment on how things are in the USA, but here, although there were certainly some excesses in the movement towards political correctness (which seems to me to be characteristic of change processes driven by consciousness of injustice), basically a lot of political correctness seems to me to be a move towards good manners and inclusiveness, which has mindfulness of past realities and current inequities.

We now have the backlash, with its own excesses, which emulates the very faults of which it accuses its opponent.

Lash - if you have been called honkey and cracker and whitey, then that behaviour is unquestionably rude - unless done in the context of mutually agreed friendly teasing. You said:

" No negative word denoting my race has ever given rise to my blood."

I am a little unsure what you mean by this - perhaps that it has done you no terrible harm to be called these things? - that, I think is the nubbin of why it is different to be called "nigger"!

Being a nigger, (or a "boong" in Australia, or a whatever name other groups who have been mistreated have been called), HAS given rise to blood! Being identified as part of some groups has meant the most terrible things, as I think you would not deny.

I think this sort of history DOES change the meanings of some words and actions - for a long time. For instance, when I listen to Aboriginal music and radio programs, I am often somewhat distressed by the views expressed and the language used - I find it a little rude to be addressed as whitey and suchlike - but no, it does not really hurt me - and I have the insight to understand the context. I am, on the other hand, horrified when I hear non-aboriginal people using denigrating language about Aboriginal people - because i know that the views expressed by the use of such language have actual power, still, in the lives of Aboriginal people and wound them deeply when overheard.

I think human reality is embedded in a social and historical context - to deny the importance of this context and its import is fine, if that is what you want to do - but you are, I think, seeing with half an eye when you choose to do it.

This has all, no doubt, been said before - and better - I haven't read the entire thread.

dlowen--
As usual, valued your insights. I believe they are from a thoughtful and particularly personal viewpoint.

I'm not unmindful of the horrors that different minority members have suffered. I was against racial slurs before PC. The slant of my conversation is easy to misconstrue.

Thank you for your words.

Lash

It is frustrating to talk to you when you offer circular arguments that beg your own question, when you avoid the tough questions with "private property violations are illegal", and when you start a thread with no intention of changing your mind but of simply arguing why your idea is right. These guys in the supreme court are not dummies, and you pass off their incredibily careful and thoughtful and challenging deliberations with something like a Rush Limbaugh certainty about 'political correctness' being the reason they and other courts have concluded as they have.

You say that you are an absolutist about the framers' intention. How on earth can you even dream you know what that was, or what it would be now? Your move here is precisely that of biblical literalists. It's too confusing and too dangerous to open a crack in the door because Satan will surely come through.

Look, I like you, but you're just not working hard enough at this particular issue. These questions aren't easy, they are bloody difficult.

Ah, but blatham, why would you not think this were protected speech? If your main street had happened to be in Skoki, Illinois, and you substitute the word jews for nigger trash, this is precisely what happened.

Are you really going to send me out drumming up links? If you are really unfamiliar with the incident, I'm sure I can.

Hey, don't forget guys - the issue is not whether cross burnings are, or should be, protected. It's whether they equate to flag burning in terms of freedom of expression. I maintain they do, the Supreme Court chooses to differ.

I'm on AOL so I will not read this whole thread (I miss broadband).

I think both should be protected by law. If it's used as a threat (e.g. burning a flag in front of the house of someone whose nationality places him/her at risk or burning a cross to threaten violence) it is no longer an issue of burning something but of threatening behavior.

Lighting a match is legal. Lighting a match to set a baby on fire isn't.

This question always struck me as one that is loaded (with a blank).

Oh oh oh I have another!

Using a blowtorch is legal. Using a blow torch to threaten someone isn't.

When looking up my 'britannica-cd' for cross burnin, the first related article has the headline: "Common characteristics of fascist movements".

Flag burning brings as result: "The legislative branch (from: United States)".



However, this may not be a subject of public interest here in Germany, since it's a criminal offense:
Criminal Code Germany:
Section 90a Disparagement of the State and its Symbols
(1) Whoever publicly, in a meeting or through the dissemination of writings (Section 11 subsection (3)):
1. insults or maliciously maligns the Federal Republic of Germany or one of its Lands or its constitutional order; or
2. disparages the colors, flag, coat of arms or the anthem of the Federal Republic of Germany or one of its Lands,
shall be punished with imprisonment for not more than three years or a fine.
(2) Whoever removes, destroys, damages, renders unusable or unrecognizable, or commits insulting mischief upon a publicly displayed flag of the Federal Republic of Germany or one of its Lands or a national emblem installed by a public authority of the Federal Republic of Germany or one of its Lands shall be similarly punished. An attempt shall be punishable.
(3) The punishment shall be imprisonment for not more than five years or a fine if the perpetrator by the act intentionally gives support to efforts against the continued existence of the Federal Republic of Germany or against its constitutional principles.

Section 104 Injury to Flags or National Emblems of Foreign States
(1) Whoever removes, destroys, damages, renders unrecognizable, or commits insulting mischief with a flag of a foreign state, which is displayed according to legal provisions or recognized custom, or a national emblem of such a state which has been publicly installed by a recognized mission of such state, shall be punished with imprisonment for not more than two years or a fine.
(2) An attempt shall be punishable.

Section 104a Prerequisites for Criminal Prosecution
Crimes under this section shall only be prosecuted if the Federal Republic of Germany maintains diplomatic relations with the other state, reciprocity is guaranteed and was also guaranteed at the time of the act, a request for prosecution by the foreign government exists, and the federal government gives authorization for criminal prosecution.



Burning crosses isn't regulated per se in our Criminal Code.
Related sections are (besides arson):

Section 166 Insulting of Faiths, Religious Societies and Organizations Dedicated to a Philosophy of Life
(1) Whoever publicly or through dissemination of writings (Section 11 subsection (3)) insults the content of others' religious faith or faith related to a philosophy of life in a manner that is capable of disturbing the public peace, shall be punished with imprisonment for not more than three years or a fine.
(2) Whoever publicly or through dissemination of writings (Section 11 subsection (3)) insults a church, other religious society, or organization dedicated to a philosophy of life located in Germany, or their institutions or customs in a manner that is capable of disturbing the public peace, shall be similarly punished.

Section 167 Disturbing the Practice of Religion
(1) Whoever:
1. intentionally and in a gross manner disturbs a religious service or an act of a religious service of a church or other religious society located in Germany; or
2. commits insulting mischief at a place dedicated to the religious services of such a religious society,
shall be punished with imprisonment for not more than three years or a fine.
(2) Corresponding celebrations of an organization dedicated to a philosophy of life located in Germany shall be the equivalent of religious services.

it is quite possible that i have "misunderstood" this issue now before the Supremes but i think that the case involves burning a cross on the property, in the yard, of a black family. If indeed this is correct then it is not an issue of free speech. I once had a cross burned in my yard and i am white, blond, blue eyed and a "damn yankee and i reacted as if it were simply a juvenile prank (it was not) however i have to admit i felt physically threatned.

ah ha i did mange to find this on CNN
In the cross-burning case, they're debating now whether three white men were wrongly prosecuted, in separate cases, for lighting crosses during a Klan rally and in the yard of an African American family.

The Virginia Supreme Court overturned the convictions of the men, ruling the burnings were symbolic speech.

It is simply not possible to make cross burning a 'symbolic act' in the USA. If we were in Germany or Tibet I would think twice about it. On the other hand, I did voice, in my first or so response, a notion that in a situation far removed from other people and done without the trappings of the KKK, it is possible to burn a cross without seeming criminal, but there would then be no meaning to the act and why then would anyone waste time doing it? By and large, without a touch of realism, such as the very real threat of violence, the discussion becomes neutered and not worth pursuing.

H.L. Menchen:
"I believe there is a limit beyond which free speech cannot go, but it's a limit that's very seldom mentioned. It's the point where free speech begins to collide with the right to privacy. I don't think there are any other conditions to free speech. I've got a right to say and believe anything I please, but I haven't got a right to press it on anybody else. .... Nobody's got a right to be a nuisance to his neighbors."

Ok...need to read some of the posts since my last visit, but...

The following is a very clear overview of the cross burning issue as it applies to (some) states laws and to the Virginia case which the Supreme Court is about to hear. http://www.freedomforum.org/templates/document.asp?documentID=16320

I was under the mistaken impression that the US Supreme Court has already limited speech somewhat differently than it has. Present restrictions apply to words designed to "incite an immediate breach of the peace" or that are directed at an individual, and words that are intended to provoke "imminent lawless action." http://www.csulb.edu/~jvancamp/freedom1.html

I was also not appropriately differentiating 'hate crimes' and 'hate speech' in Supreme Court findings, the former which is legislated against. The US appears unique in this regard, as Canada, the EU, Australia, etc have initiated legislation against 'hate speech'.

So I'll post this, then come back in a bit. I have apparently been biting my own bum a bit in this discussion, and thus bandaging is required.

roger

When I said (to Lash) "This is the cop-out I knew you'd take", I was referring to something a bit different with 'cop-out'.

I had mistaken assumed that painting swastikas on Jewish graves was a speech act not protected and was asking Lash why that might be so. Her response - that private property is damaged seemed to avoid the more delicate and complicated issue, rather as if the worst thing about being stabbed is that your expensive jacket gets ruined.

roger

On the matter of flag burning, this is as I thought, protected speech. From Brennan in Texas v Johnson..;

JUSTICE BRENNAN delivered the opinion of the Court.
After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not.

This decision is verified in a subsequent case before the court...
http://bessel.org/caseeich.htm

dyslexia said..."I once had a cross burned in my back yard...I felt physically threatened".

This is, of course, the key difference between the two acts (burning a cross, burning a flag) because of the different meanings symbolized (that meaning arising from historical events).

Finally, then I'll shut up for a bit...

edgar - your last post seems right on the money.

dys - you put your finger, I think, on the dilemma of much law making and much about social life which is the conflicts which arise between valid interests and principles.

Thanks Blatham

Thanks, Craven. I happen to agree completely. I don't think the law should reach past the action in question, and moralize intent or thought or feelings that go hand in hand with an act. Judge the act fairly with similar acts.

Anything that occurs after an act has it's own limiting laws.

Lash - Craven's examples point out that the acts with intent are illegal. I think that's the opposite of your argument.

I cannot believe that burning a cross in someone else's yard is protected!!!
That was a miscarriage of justice!

And, dys, how infuriating to have someone burn a cross in YOUR yard. Too bad you didn't have that shotgun at the ready. Somebody needed to be picking buckshot out of their butt!

On the flip side of my assertion that cross burning should receive the same protection as flag burning (I wish neither were protected), I AM VERY SERIOUS about property rights.)

Come on my property to burn something, steal something or create mayhem, and you may never leave my property of your own volition.