Flag Burning

Well, I know the reason they ran off---but, why did they try to burn a cross in your yard? Obviously not an implied threat against blacks. I imagine it was meant to be one toward you?
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ebrown--

Don't pretend everyone knew about the 2003 case. I don't mind admitting I didn't. I'm glad you pointed it out. It is fair, and I feel the universe is a tad more equitable now than I thought it was a 11AM.

<smiling>

For anyone else who hadn't read it:

The Court's Recent, Controversial Cross-Burning Ruling, And Why It Was Correct
By ERWIN CHEMERINSKY
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Thursday, Apr. 17, 2003

On April 7, in the case of Virginia v. Black, the Supreme Court held that cross-burning with intent to intimidate is not protected by the First Amendment. However, such intent cannot be inferred from the act of cross-burning itself; it must be separately proven.

The decision, though controversial, was clearly the right one. The Court's decision struck exactly the right balance in this difficult area. The First Amendment should not protect the right of people to intimidate or threaten others. But the government cannot eliminate any symbol, however offensive. Speech may be made illegal if it threatens, but not because it offends.

The Divisive Issue of "Hate Speech"

Few topics in constitutional law have generated as much scholarly debate in the last fifteen years as the extent to which the First Amendment should protect "hate speech." (Hate speech is speech that expresses animosity on the basis of race, national origin, ethnicity, religion, gender, or sexual orientation.)

Some argue that hate speech perpetuates discrimination and wounds those who long have been victims. Others argue that it is wrong for the government to deem any viewpoint, however vile, outside the bounds of the First Amendment.

In Virginia v. Black, the Supreme Court returned to the issue of hate speech in a context with tragic history: cross-burning in the south. In essence, cross-burning operates as a message of hatred towards, and an implicit threat against, African-Americans.

The Relevant Statute, and the Facts of the Two Cases

Recognizing that cross-burning very often sends a threatening message, Virginia decided to prohibit cross-burning with the intent to intimidate. Such cross-burning, the Court correctly held, is not protected by the First Amendment.

Virginia also tried to go further - and to make the intent to intimidate easy to prove. Its statute provides that "[a]ny such burning . . . shall be prima facie evidence of an intent to intimidate a person or group."

"Prima facie evidence," in this context, means evidence sufficient, by itself, to prove the intent to intimidate. Under the Virginia statute, then, once the burning itself is proven, the burden shifts to the cross-burner to show that he did not in fact have the intent to intimidate when he burned the cross.

Before the Court were two separate Virginia cases that arose under the law. In one, a cross was burned at a Ku Klux Klan rally on a farm. The farm was fairly isolated and apparently relatively few people saw the incident. In the other, individuals burned a cross in the yard of an African-American family's home.

The Court's decision allowed both prosecutions to go forward - but required specific proof of the intent to intimidate in each. Such proof will likely be easy to provide in the case of the cross-burning in the family's yard - plainly a threatening tactic, meant to be understood as such. But the requisite may be much harder to provide in the case of the Ku Klux Klan rally, since rally attendees, far from being intimidated, were probably there voluntarily to support the cross-burning.

The various opinions in Virginia v. Black are difficult to interpret and their upshot may be confusing to decipher - especially since Justice O'Connor wrote an opinion for a majority of Justices as to some issues, but only for a plurality on other issues.

Nonetheless, this much can definitively be said: A majority of the Court supported three basic conclusions.

The First Principle: Some Cross-Burning Is Free Speech

First, cross-burning is not automatically exempt from First Amendment protection.

Previously, in the case of RAV v. City of St. Paul, the Court struck had down a city ordinance that prohibited burning a cross or painting a swastika in a manner likely to anger, alarm, or cause resentment. It implicitly made clear that the government cannot outlaw such symbols of hate, however offensive they may be. Then this month, in Virginia v. Black, the Court expressly reiterated that principle.

This seems exactly right. Many symbols may be terribly disturbing. For example, burning a flag is perceived by many as deeply offensive, just as burning a cross conveys the worst of America's legacy of racism. But under the First Amendment, it is not for the government to prevent particular views from being expressed.

Under the First Amendment, people may convey even racist views, however much the expression wounds and divides. Even highly repugnant messages may be expressed so long as they do not threaten others.

Nor can the government outlaw the most powerful ways of expressing those opinions.

Indeed, governments seek to ban burning of flags or crosses precisely because these symbols are so widely understood and so effective at conveying particular messages. The Court has held in Texas v. Johnson that flag burning, on its own, cannot be prohibited. The same should be true of cross-burning on its own.

But in reality, cross-burning rarely exists on its own - it often comes with a hateful, racist threat. And that is what the Court recognized when it set forth its second principle.

The Second Principle: Cross-Burning Proven to Be Threatening Can Be Made Illegal

Second, the Court held that cross-burning with the intent to intimidate is not protected by the First Amendment. Thus, as long as the government can prove a particular act of cross-burning was intended to intimidate, or reasonably perceived as a "true threat," it may be made illegal.

This, too, seems exactly right. The Supreme Court previously had ruled that true threats are not protected under the Constitution - in cases such as Madsen v. Women's Health Center, and United States v. Watts.

These decisions supported a strong principle, and Virginia v. Black continues it: Freedom of speech does not mean anyone has the right to make others feel their safety is threatened. People have the right to express themselves, including by burning a cross, but not in a way that is intended to threaten and intimidate.

The Third Principle: Intent to Intimidate Must Be Proven, Not Inferred From the Act

Third, the Court, though, without a majority opinion, ruled that cross-burning could not be taken as "prima facie" evidence of the intent to intimidate. Instead, the government must prove more than the act of cross-burning to punish a person under the First Amendment. Through other evidence, the government must demonstrate the speaker's wrongful goals.

How might that work? In the case of the cross being burned on the African-American family's law, prosecutors might point, for example, to the fact that the cross-burners trespassed to convey an "in your face" message to the family - crossing property lines to imply that other lines, too, might be crossed.

Proof will differ in different cases - and that is as it should be. Sometimes cross-burning is free speech, however reprehensible; at other times, it is a threat to life and safety, and thus may be made illegal just like any other such threat.
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Seems very reasonable.

PS dys-- That is shocking. Did you think about shooting their tires? Just for the hell of it?

<grins>

What's your point Lash?

You seem to be yelling because you are accusing someone of hypocrisy. The ACLU defended the KKK member who was the defendent in this case that made it to the supreme court. There is no hypocrisy in the ACLU's position, or in the position of most of us on the left.

I disagree with Mr. Chemerinsky. I don't know what he says about flag burning.

So what?

I equated the burning of the two things.

Some disagreed.

I thought those who disagreed were being hypocritical.

So what?

(How can you disagree with someone, if you don't know what he says?)

What I find interesting is this:

Most of the people that say burning our flag should be allowed because of free speech would be the first ones calling for life imprisonment as soon as someone nails a couple two-by-fours into a cross and lights it on fire.

Lash is right. You can't have it both ways, people! Either both are allowed, or both are outlawed.

I don't believe this is true at all.

Do you have any evidence for this? Most liberals are pretty solid that the First Amendment is sacred in any circumstance.

Look at the ACLU position.

I consider it appropriate that cross-burning gets equal protection, in certain circumstances. In others, where its sole intent is intimidation, i think state hate-crime laws ought to apply.

To claim that it is hypocricy not to automatically equate flag- and cross-burning stinks, though. The intent of flag-burning is not to intimidate. The intent of cross-burning is. Stupid remarks about who takes offense to one or the other are meaningless.

I don' t agree with burning the flag but anyone who wants to should be allowed.

We have had this discussion before here. Plenty have changed their minds, but I'm glad they've finally seen the error of treating the two things differently.

I think it's mean to burn either, but shouldn't be illegal.

My opinion is - the burning of a flag is a childish way to may a political point - the equivalent of a child stomping its feet. I thought grownups had better verbal skills, apparently not.

If the Court ends up saying the First Amendment protects flag-burning but not cross-burning, it may have a very hard time saying why. To staunch patriots, the former may be the more despicable; to civil rights activists, the latter may be worse.

Do you see any difference burning a flag at a political rally or burning a cross at a klan rally ? Free speech or means to incite hate and intimidation ? Probably a little of both.

How about burning a bible in front of churchgoers as they leave church to show dissaproval of their beliefs ? Or a torah outside of synogogues ?

What about ripping a flag of a casket of a dead soldier and burning it at his funeral in front of his family to express your right to free speech and oppsoition to a war you don't agree with? Would you or the ACLU defend that persons first amendment rights ?

The picketing of Matthew Sheperd's funeral by the Phelps Family also comes to mind. People wanted the God Hates Fags group arrested for what they were doing, but they were within their first amendment rights to peacefully protest. I'm sure the ACLU was fine with that but others wanted them arrested because of their dispicable message.

And then there's NAMBLA. They have the freedom to say whatever they want about sex with children as long as we don't catch them acting on it. But when they do act on it, we all act appauled and blame the police and the judicial system for not stopping them.

If the Court ends up saying the First Amendment protects flag-burning but not cross-burning, it may have a very hard time saying why. To staunch patriots, the former may be the more despicable; to civil rights activists, the latter may be worse.

Do you see any difference burning a flag at a political rally or burning a cross at a klan rally ? Free speech or means to incite hate and intimidation ? Probably a little of both.

How about burning a bible in front of churchgoers as they leave church to show dissaproval of their beliefs ? Or a torah outside of synogogues ?

What about ripping a flag of a casket of a dead soldier and burning it at his funeral in front of his family to express your right to free speech and oppsoition to a war you don't agree with? Would you or the ACLU defend that persons first amendment rights ?

The picketing of Matthew Sheperd's funeral by the Phelps Family also comes to mind. People wanted the God Hates Fags group arrested for what they were doing, but they were within their first amendment rights to peacefully protest. I'm sure the ACLU was fine with that but others wanted them arrested because of their dispicable message.

And then there's NAMBLA. They have the freedom to say whatever they want about sex with children as long as we don't catch them acting on it. But when they do act on it, we all act appauled and blame the police and the judicial system for not stopping them.

The cross-burning almost always takes place on somebody's private property and is just as much a threat to harm someone on that property as any terrorist threat. Not so with flag burning which takes place nearly always on public property as a protest to government actions, especially a war. Not the same thing.

Or is it just because you favor flag burning to cross burning ?

Someone could get hurt just as easily burning a flag as a cross.

But anyone that burns the flag in public as protest should not be able to press charges on anyone that beats him up in protest.

You can't argue that it is a right for somebody to burn a flag and then deny him his rights if somebody beats him up in the commission of his deed.

This is getting silly...

Beating someone up is not a crime?

Can a flag burner shoot someone in self-defense as he is getting beaten up.

Should I choose to burn a flag and someone/s attempt to beat on me I will be carrying a gun and I will shoot to kill the bastard.

Does the flag burner have to purchase the flag, or can he steal it from the guy who will eventually beat him up and get shot in doing so?

It is silly, isn't it.

Hey, nice new Avatar :-)

Thanks,

I get prettier every day, don't I.

You love your Constitutional Rights, doncha' dys?