Flag burning/Cross Burning: Both expression?

Hmmmmmmmm...

I think there is another element we ought to differentiate here - threat of physical harm versus feeling offended.

Religious communities, for example, rather commonly complain that some work of art or some comment causes offence (eg a movie depicting Jesus in some unusual manner). Or, folks with certain notions about their nation and its symbols. A lovely example was recounted by John Cleese where, as they were exiting the stage door after a live performance in London which included a skit on the Queen, a little old English lady was waiting and began beating them with her umbrella. Cleese said "That told us we were doing precisely the right thing".

When we take pokes at 'sacred' symbols in the community, Cleese implies, we are doing a community service. And I think he is exactly correct. What a community establishes as 'sacred' become symbols or stories which everyone stops thinking about in any critical way, they become fixed and uninspected ideas - 'politically correct', as Lash might put it.

The single caveat here is that such 'offensive' acts are justifiable in cases where the ideas effect the polity. Offending a religious group who live off in caves somewhere, who have no purpose to effect community policy or to evangelize their values sit outside of the polity and are not relevant to it. But, in contrast, a political party or a fellow like Pat Robertson are decidely engaged in the discourse as to how the community ought to be run. Because they now have entered the marketplace of ideas, they are (in a democracy worth calling itself one) available for criticism and satire.

Threat of physical danger is clearly very different.

I'd agree with your premise there blatham.

It appears that there are many who want to ban the offensive and IMO, that is a major mistake. We have social mechanisims to limit the offensive that don't require laws and I'd place both flag and cross burning in the "offensive" catagory, not "threating".

Should someone cross the line with either and move to a position where a true physical threat exists then we are in a different situation and IMO, we already have laws to deal with those situations here in the US.

"Should someone cross the line with either and move to a position where a true physical threat exists then we are in a different situation and IMO, we already have laws to deal with those situations here in the US." Apparently not as one of the cases now before the Supremes deals with a cross burning in the yard of a black family, i would certainly consider that a physical threat and not a case of free speech.

fishin

My love for you is precisely on par with my love for Aunt Nettie, who, as it happens, will be out of jail Tuesday.

Thus, I find myself deeply discomfited to be in disagreement with you on one corner of this.

Let me contrast two events. A decade ago, here in Toronto, a production of Showboat gained a sustained and vocal protest from a group of African Canadians because of some content elements in the play which these folks held to be denigrating to blacks (Uncle Tom's Cabin stuff). Those protests (and I think there was a legal challenge as well - ehBeth may recall) got nowhere, and a large part of the dismissal came out of the black community itself. They held that the play was an historical document, and a work of art, and it wasn't at all likely that its performance would alter anyone's thinking or behavior in the direction of discrimination or dehumanization.

On the other hand, a cross burning would not be dismissed by them or me in the same way. There is, surely, some difference in threat here. Clearly, such a threat is now less than what it would have been forty years ago in Arkansas, but a clear difference seems to remain.

I think in the end the Supreme Court will rule the one case where the cross was burned in backyard of the black neighbor ISN'T protected speech but the other cases where they were burned on private property with the approval of the property owner IS.

The laws to deal with DO exist. Once you step onto someone else's property you have tresspass laws and the action would be evidence of an intent to terrorize.

fishin

That's a good point. It would be interesting to imagine how deliberations and finding might go if there were additional evidence of such intent by a burner, eg., rascist web site, hosting white power weenie roasts out in the north forty, etc.

Just to make myself clear(er?) here, whether a group chooses to dismiss an event or challenge those who conduct the event is different than banning the event altogether. If someone is offended by a cross burning they surely have the right to say so loudly and clearly. They have just as much right to protest a cross burning as the the KKK has to burn a cross. That all falls in those "social mechanisims" I mentioned before.

That doesn't mean that the government should step in and ban the action though.

I don't agree that there is any difference in threat between the two scenarios you postulated. I would agree that there is a significant difference in the level of offense though.

Let me add a 3rd sceanrio to your list. You go snowshoeing with a group of 10 in Northern BC in Feburary and become disoriented and lost as the sun sets. You stumble a upon an old and clearly abandoned church where you seek shelter for the evening as temps drop to well below freezing. The only wood available for you to obtain any heat is a huge wooden crucifix in the corner. Would you be unwilling to burn that cross because someone back in Montreal might be threatened by it? If you did burn it and were arrested for burning a cross as a hate crime would you feel your arrest and imprisonment were justified? Did you create a threat to anyone by burning it?

I doubt anyone would see this action as either offensive or a threat but it would still be in violation of the law if cross banning were outlawed.

Cross-burning in that case, Fishin', would not be considered threatening speech, and no one would be in violation of the law.

The points as I understand them are: Cross-Burning is not a simple burning of wood -- it is meant to be speech. Some say that therefore it should be free speech, as protected by the First Amendment.

Yet the message is clearly intimidation. It is shocking that even within the past five years there have been at least three incidents of whites burning crosses on the property of black families with the clear and obvious intent to intimidate them. The pattern is to try to get them to move from the neighborhood.

Threatening speech is not protected by the First Amendment. One cannot walk down the street and threaten people with bodily harm. In the same way, one should not be allowed to burn a cross to threaten people with bodily harm.

This is precisely my point here. There is, on the part of many, a presumed intent when somone says "cross burning" but there is NO way for the legal system to write a law that outlaws cross burning and exclude every other possible acceptable intent. One of the foundations of law is that it is supposed to be applied equeally. If the act of burning a cross itself is outlawed then the intent becomes irrelevant - you burn one you go to jail.

And you are right, threating people is not protected speech. That is exactly why we have laws against communicating a threat. So why not use THOSE laws to arrest those who use cross-burning as a threat instead of making other laws that ban cross-burning and end up with thousands of holes in them because of all the exceptions for every other possible intent?

I suppose I should also mention here that there is no Constitutional right within the US to not feel intimidated or threatened. In an ideal world no one would ever feel threatened in any way but such a thing would be impossible to legislate.

flag
Dlowan, it seems to me that because of what flag-burning signals it is more than a mere expression of ideas. I belong to the aclu and am very picky about restrictions on our expressions--when they are expressions of ideas. Expressions that menace others, and are intended to menace and intimadate them, are ACTS of violence. TO burn a flag on someone's property is tantamount to the "assault" that precedes "battery."

(I wish you wouldn't quote my entire post... it does feel intimidating. You say it is NOT my constitutional right to not be intimidated??? Rats. Well, what about on A2K?)

To answer your question, Fishin'... "So why not use those laws...?"

I suppose it is because most laws are not well-written and those laws... which ones, exactly? probably aren't either.

I would be totally pleased if there were simple, easy-to-understand laws that would cover this. Especially if there were a way to adequately punish (and by this I mean, so as to make them stop) intimidation or threatening speech and include in it such things as cross-burning, swastikas, etc. I would be all in favor. Sign me up. Make it so.

I wish we had about ten laws. No. Not those ten! But ten, good solid simple laws since there appear to be so many folk who won't behave. Shoot, I'd take 20 laws.

But how many thousands of stupid, ill-conceived, screwy, misbegotten laws are there that don't make perfect sense? We try to legislate every single thing, I suppose so that it is understood clearly... and it backfires. The reason we do so is there are many (in the south and elsewhere) who don't get it. They somehow don't believe there should be a severe repercussion if they get drunk and take a cross to the people next door and gift them with fire.

Sorry! I was lazy and didn't bother to cut it up! lol



Well, my dad had a good solution for those people although it is generally frowned upon in today's society. He'd grab them by the arm, drag them behind a building and whack them on the back of the head with a 2x4.

I've heard a whacking on the knees was equally effective and frowned upon.

Probably some mixed-up and confusing law about that, too.

Off topic, but I very much agree with Pifka on the quotes. Somehow, quoting word for word almost sounds like an we're being accused of something. Well, it can be a concise way of indicating what we are responding to in long and complex discussions, so it isn't going away. Still, I don't like it either.

Heavens, JL Nobody, if someone came onto my property and burned almost anything I would feel it a threat - unless they were invited and it was a barbecue!

flag
Of course. Good point--but does that negate my effort?

Not at all - burning symbols that some revere is clearly meant to annoy and startle - I am agreeing with you that doing something like that on somebody's property clearly takes things to a new level.

flag
Indubitably!

Here is what Electric Scotland http://www.electricscotland.com/history/social/sh14.html
has to say about the fiery cross tradition.
--
"Each clan had a stated place of rendezvous, where they met at the call of their chief. When an emergency arose for an immediate meeting from the incursions of a hostile clan, the cross or tarie, or fiery-cross, was immediately despatched through the territories of the clan. This signal consisted of two pieces of wood placed in the form of a cross. One of the ends of the horizontal piece was either burnt or burning, and a piece of linen or white cloth stained with blood was suspended from the other end. Two men, each with a cross in his hand, were despatched by the chief in different directions, who kept running with great speed, shouting the war-cry of the tribe, and naming the place of rendezvous, if different from the usual place of meeting. The cross was delivered from hand to hand, and as each fresh bearer ran at full speed, the clan assembled with great celerity. General Stewart says, that one of the latest instances of the fiery-cross being used, was in 1745 by Lord Breadalbane, when it went round Loch Tay, a distance of thirty-two miles, in three hours, to raise his people and prevent their joining the rebels, but with less effect than in 1715 when it went the same round, and when 500 men assembled in a few hours, under the command of the Laird of Glenlyon, to join the Earl of Mar."


and from a KKK website:
Why we light the Cross

Mortal man wonders in awe, at the sight of a huge cross set upon a hill encircled by those who placed it there. Adorned in White robes and hoods they perform the age-old rituals, then in somber silence approach the cross, and set ablaze the symbol of Christianity. To most men this act of igniting a symbol of the Christian faith may seem barbaric or even mext to anti-Christian, but nothing could be farther from the truth.

The truth is; Klansmen hold the Cross in most high reverence. We of the American Knights of the Ku Klux Klan, Honor the Holy Cross, as a symbol of Christian Faith, and recognize the sacrifice of Holy Blood, which was shed that all men might receive forgivness of sin, and have life everlasting. We light the Cross in recognition that.....

JESUS CHRIST IS THE LIGHT OF THE WORLD

As light drives out darkness so knowledge and truth dispel ignorance and superstition. The lighting of the Cross was originally taken from the lighting of signal fires upon the mountaintops of Scotland as a warning of danger from an invading enemy. So we of the American Knights of the Ku Klux Klan light the cross as a warning signal to all men of the impending disaster that is facing our Nation if it continues on it's present course without God.

We also light the cross as a tribute to Jesus Christ in recognition of his sacrifice, and willingness to die for our sins. We endeavor to warn of the dangers of interracial mixing, and teach those who will listen and learn, the ways of the Klan. We feel it is our duty to prepare ourselves, and those of our race, for the hard road ahead, while the Government over this Nation turns like a rabid dog upon the vary people who support it.

We of the American Knights of the Ku Klux Klan want you to understand that there is a difference between Lighting a cross and Cross burning. The lighting of a cross is a religious ceremony, performed in reverence to the Lord Jesus Christ, in recognition of his sacrifice.

The burning of a cross is an illegal act of violence against a person or a person's home, while invading their privacy with the intent to harass, intimidate, or do bodily harm. This act of burning a cross is usually performed by irate citizens who do not understand the rules of the Klan, but wish to use the influence of the Klan to scare their victims, by burning a cross usually less than ten feet tall in the persons yard or against the home.

We of the American Knights of the Ku Klux Klan, wish to take this opportunity to invite you to join us and learn the meaning of true Klanishness, and help us build a better Nation for our children to grow up in and call home.