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July 25, 2005

An Unthinking Disgrace

In Fairfield, Ohio:

FAIRFIELD, Ohio -- Less than 24 hours after a Tri-state soldier was buried, someone pulled up 20 American flags from his father-in-law's front yard and set fire to them under a car in the driveway, News 5 reported.

First, let's acknowledge that whoever did this is, quite simply, a wretched excuse for a human being. Period. It's an outrageous and deeply offensive act of cruel unthinking idiocy.

Second, let's refrain from the almost certain leaping upon the left that is sure to ensue. At the absolute least, let's refrain until more is known. There's a very good chance, IMO, that this was an act of very misguided (and indeed, bottom line inexcusable) youthful passion by someone who was unaware of the background of a death in the family. I don't hestitate to bet that the vast majority of zealous anti-war advocates find this very troublesome. As for whoever remains among the anti-war left that might see fit to act as an apologist, well there are always a few. Refer to the recent thread on zeal as needed.

Unless facts come to light showing that this was a planned act by an organized group made with full knowledge of the family's circumstances, it's a stretch to make any sort of "this just goes to show how [insert condemning insult] the left has become." Absent such facts, this act is no more representative of anti-Iraq war Americans as a group than that nut who killed the abortion doctor is representative of Americans who oppose legal abortion.


So if we want to pour our energies into some response to this, let's focus it upon showing the Hines family that the overwhelming majority of Americans honor and respect their family's sacrifice. I hope whoever did this gets caught, and punished to the full extent possible. If the guilty person or people are ever to become anything approaching decent human beings, they'll come to harbor an unrelenting shame at what they've done to the Hines family. Maybe we choose a day in August as a solidarity day to express our support for the Hines family and all the troops, and resolve on that day to display extra flags. Or find some other way. If contact information becomes available, let's share it, and show our support. Perhaps we can turn this around and some good can come from it.

UPDATE Sign the guestbook for Pfc Timothy Hines and express your gratitude for his service.

UPDATE II: As of this A.M. 7/26, neither CNN, Fox, nor MSNBC, shows coverage of this story upon a search for "Timothy Hines." I take the Fox failure as calling into the question the notion that this coverage gap is due to the MSM's liberal bias. So if you're the sort who is prone to jumping on that particular easy excuse train, be aware that it's struggling to leave the station. I further note that Yahoo News pops it right up. If we want real bias-free coverage, place another W in the column of the aggregators.


Posted by Brian Keegan at July 25, 2005 09:47 AM
Comments

This is truly a tragedy for a family that is obviously grieving. I hope that they find the individual (or individuals) responsible.

As far as the link about the Pennsylvania Lt. Governor...if an investigation of the facts backs up this particular family member's story, then it truly is a disgrace. I hesitate to rush to judgement simply because the only source for this story appears to be the one family member. I find it suprising that the reporter would not interview others who attended the funeral.

Posted by: AR at July 25, 2005 01:15 PM

In regards to Todd's earlier post and my response to it, it appears now as if Pennsylvania's Governor appears to be acknowledging that Lt. Gov Knoll's conduct was out of bounds. Gov. Rendell announced that "letters of apology" will be sent to the family members. Forgive me, but if this story is true (as he appears to be acknowledging), this is a pretty lame response.

Posted by: AR at July 25, 2005 01:21 PM

This is a tragedy, and not to be cynical about it, I'm afraid this incident almost insures that the flag burning amendment will pass.

Posted by: MWS at July 25, 2005 03:27 PM

Mmm, not so sure. I'm surprised this story hasn't yet gotten any traction at CNN, Fox, or MSNBC. Let's notice that it's already a crime to burn someone else's flag on their property.

This bolsters the point that it's important that the perpertrator be caught and appropriately punished, which would demonstrate that we don't need the new law.

Posted by: bk at July 25, 2005 04:25 PM

It's both a tragedy and a crime; and very cruel (whether unthinking or not). I fear the guilty one won't be caught for awhile -- hope I'm wrong.


On a comparison side:
"Absent such facts, this act is no more representative of anti-Iraq war Americans as a group than that nut who killed the abortion doctor is representative of Americans who oppose legal abortion."
The Media had QUITE a LOT of stories explictly including quotes of people supporting exactly the type of demonization of anti-abortion folk that you want to avoid.

Because the MSM is anti-abortion, demonizing pro-life folk was fine with most of them.
Because the MSM is anti- Bush, and thus anti-Bush success in Iraq, it's unlikely they will demonize the many anti-Iraq war folk as similar to this sick-o.

Posted by: Tom Grey - Liberty Dad at July 25, 2005 06:04 PM

Todd -- I hope this spells the end for the political career of that Lieutenant Governor. Beyond her revolting disrespectful behavior at a funeral, she also misrepresented the position of her own state government, which has no position on the war.

Posted by: Susan at July 25, 2005 06:21 PM

Brian,

Actually saw a little blurb on CNN about it--it covered Ed Rendell's statement that he would mail apologies. They had a little story on CNN.com as well.

Posted by: AR at July 25, 2005 06:22 PM

I suspect that the flag burning amendment will pass Congress, but I don't know whether it will pass muster in the states. The ultimate question that determines its fate - as obvious as this may sound - is whether the opponents will succeed in characterizing it as an issue of free speech, or whether the proponents will succeed in characterizing it as a question of respect for the flag and for America's values. If the latter prevails, and the public perception is that it's a question of protecting the flag, the amendment will pass with flying colors, because which state legislator wants to read a newspaper report that they voted against protecting the American flag?

This framing stuff that Lakoff and Dean like so much may sound like a trendy buzzword, but it does actually matter. ;)

I realize that this may not be the place for this, but Brian brought up the issue of the flag burning amendment. We had a thread on this recently which I wanted to contribute my thoughts to, but didn't have the time. I preface these remarks by noting that whomever did the things described in the base post was not engaged in the excercise of their constitutional rights, but rather, was emptying their bladder on a fallen hero. Whenever people complain that it's an obvious truism to state that one supports the troops even while opposing the war, we can now fairly safely point to this occaision as an example of why it still needs to be said: the refusal of a small minority to conform to the standards of maturity and decency that are expected of a functioning member of society. This is not a "liberal thing", any more than the idiots who shoot abortion doctors are a "conservative thing"; rather, it is a moron thing, and morons are - regrettably - to be found in every part of the political spectrum.

With that having been said, I have mixed feelings about the amendment, and I offer three underlying reasons why I find myself more inclined than not to support it.

The first is the value of Old Glory. When I read Justice Stevens' dissent in Texas v. Johnson, 491 U.S. 397 (1989), I find myself in the not entirely unfamiliar position of thinking, "But Mr. Justice Stevens, this isn't an argument about whether the law is unconstitutional, it's an argument about whether the law is a terrible idea or not!". I have frequently made the argument that the Court should rule on what the Constitution says, regardless of how much the law is a good idea; if the people really want the law, they should amend the constitution. Unusually, the Court did exactly that; they ruled over Justice Stevens' dissent that burning the flag constitututed protected free speech. Now, over a decade later, my prescription for how the Constitution's meaning should be updated is in motion, and we are occaisioned to consider something that the Supreme Court can never legitimately consider: not whether burning the flag is unconstitutional, but whether it should be unconstitutional. And in that context, I find Justice Stevens' argument an impassioned and convincing exhortation of why this amendment should pass.

I take the flag and the pledge very, very seriously. They are omnipresent reminders that everything that Americans take for granted now was paid for by the willingness of America's forefathers to soak that flag in their blood. I fully accept that burning the flag is unconstitutional. I am not convinced that it shouldn't be, because, in Justice Stevens' words:

It is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations. The symbol carries its message to dissidents both at home and abroad who may have no interest at all in our national unity or survival.
The value of the flag as a symbol cannot be measured. ...Conceivably that value will be enhanced by the Court's conclusion that our national commitment to free expression is so strong that even the United States as ultimate guarantor of that freedom is without power to prohibit the desecration of its unique symbol. But I am unpersuaded. The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might enlarge the market for free expression, but at a cost I would not pay. Similarly...sanctioning the public desecration of the flag will tarnish its value - both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression - including uttering words critical of the flag - be employed.
The second point that I would make is that we accept numerous limitations on free speech, and always have. Free speech has never been considered carte blanche to libel, to incitement or "yelling fire in a crowded theater", to fighting words, to obscenity. We have long accepted the principal that there are some forms of speech which can reasonably be restricted, either because they are considered, by virtually unanimous consent, to be valueless, or, as in this case, they are of too little value relative to the damage which they might inflict. Furthermore, I have tended to viw the first amendment as predominantly a guarantee of political speech, and as such, I would personally be far more willing to sustain a challenge to, say, corporate speech (read, advertising standards regulations) than most of my originalist bretheren. But that rationale leads me to the conclusion that "speech" is not monolithic, and that some restrictions or limitations may be permissable.

Lastly, I note that this amendment does not prohibit the desecration or burning of the flag, it merely empowers Congress to do so. To put it bluntly, if it were otherwise, I would be far less inclined to support it. I objected to Kelo on the grounds that it took a right that was protected by the Constitution and improperly placed the choice to enforce or abridge that right into the democratic arena, and that there can be no coherent purpose in placing a right in the constitution other than specifically to preclude its presence in the democratic process. Likewise, then, this amendment takes a part of a right underwritten by the Constitution, and makes its upholding or abridgement a part of the normal democratic process in the political arena. However, while this amendment would have substantially the same effect as Kelo, the method by which it is offered - the Article V amendment process - gives this a legitimacy which Kelo lacks. I have never argued that the Constitution is frozen in time for all time, only that the Supreme Court cannot change its meaning. The authority to change, abridge or expand the Constitution always exists, as a function of the sovereignty of the people. Cf. comments discussing rights and sovereignty here.

Because I view some restrictions on free speech absolutism as valid, because of the inestimable value of Old Glory, and because the change is offered in the correct manner, I think that there are legitimate arguments to be made that the amendment can and should succeed.

Posted by: Simon at July 25, 2005 06:36 PM

I forgot - but fully intended - to give the last word to Justice Stevens in my previous comment:

The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for - and our history demonstrates that they are - it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.

Posted by: Simon at July 25, 2005 06:42 PM

Note to Tom Grey:

Because the MSM is anti-abortion, demonizing pro-life folk was fine with most of them.
I assume that's a typo. The mainstream media is implicitly pro-choice wherever it is not explicitly, overtly and directly pro-choice.

Posted by: Simon at July 25, 2005 06:46 PM

When I first read the post above, I just KNEW someone was going to try to make a pro-flag burning amendment case out of it . . .

. . . I just didn't know that it would be someone from THIS blog.

The person (or persons) who burned these flags is obviously a jerk who has absolutely no respect for private property, much less the American flag. But to argue that cases like this justify the flag-burning amendment is absurd in the extreme. The person (or persons) who burned these flags was wrong NOT because it was American flags that were burned, but because these American flags did not belong to the arsonist(s). Burning another person's property is illegal in all 50 states and will continue to remain illegal regardless of whether this misguided flag burning amendment passes.

Simon, having read you argument suggesting that there are legitimate arguments in favor of the flag burning amendment (and I admit that you seem to have spent a lot of time and thought in your post) I remain wholly unconvinced by your argument. Indeed, I have heard such arguments before--typically from politicians who profess to love our flag but have little respect for the freedoms that the flag represents.

I'll spare everyone here the debate over whether the right to burn the American flag constitutes freedom of speech or not. I happen to believe that it does, but I also know of several Libertarians who would disagree with the idea that flag-buring should be protected as freedom of speech and oppose the flag burning amendment on different grounds.

So I'll argue it in plain, simple, common sense terms:

My proprety is mine, Simon. Not yours. Not George W. Bush's. Not Teddy Kennedy's. Not Tom Delay's. Not Howard Dean's. MINE! What I choose to do with my property is really none of the government's concern unless I am endangering someone else's person or property. Whether I want to burn my clothes or my curtains or my college diploma is really none of the government's business, nor is it yours. An American flag is no different, regardless of its symbolic significance. An American flag that I have bought WITH MY OWN money or was GIVEN TO ME AS A GIFT is mine to do with as I please, so long as my actions do not directly threaten anyone else's safety or property.

You might believe that burning an American flag is incredibly disrespectful and childish (an opinion that most Americans would agree with), but that does not give you or the government the right to dictate to me what I can do with my own property.

Now, no one's going to argue that fire isn't dangerous and that we are free to burn our property with complete abandon. I can't, for example, simply burn my house down when my neighbor's house is a mere twenty feet away. I have a responsibility to exercise by freedoms in a way that it does not endanger my neighbor or cause damage to his property. We all have a vested interest in laws that prevent us from burning our property in a way that threatens other people's safety and property. However, these laws are for STATE and LOCAL governments to make. The federal government has no constitutional authority to make any laws regarding flags or any other articles. We should not amend the constitution to allow politicians to make such laws. These politician have far too much power anyway. Why would we want to give them more?

Conservatives tend to be the ones that are most enthusiastic about enacting flag-burning laws, and yet these laws betray the very principles that conservatives claim to believe in (i.e. smaller government, property rights). Flag burning laws (and the flag-burning amendment) are neither conservative, nor liberal, nor centrist.

They're just plain stupid.

Posted by: nicrivera at July 25, 2005 08:39 PM
Simon, having read you argument suggesting that there are legitimate arguments in favor of the flag burning amendment (and I admit that you seem to have spent a lot of time and thought in your post) I remain wholly unconvinced by your argument
That's okay - most of the time, I tend to think, being a moderate or a centrist doesn't mean agreeing with everything every other moderate or a centrist says. Sometimes it's enough to just argue our corners civilly. :p

I agree with you that burning the flag falls under freedom of speech, but the whole point of this amendment, it seems to me, is to render constitutional an action which is currently unconstitutional, or vice-versa. The same can generally be taken as read that "the federal government has no constitutional authority to make any laws regarding flags or any other articles." I don't disagree with that, and I think all the rebuttal arguments you make are very valid, and relevant. None the less, I respectfully dissent, for the reasons discussed above.

Speaking of those comments, to add a second addenda (or possibly a footnote) to them, I had to dig out Joseph Story for a debate I'm having over at PrawfsBlawg, and ran across this handy quote to add to my comments regarding limitations on freedom of speech generally:

"That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man.
...It is plum, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his fights, person, property, or reputation;1 and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends.
(III J. Story Commentaries §1874)

Posted by: Simon at July 25, 2005 10:23 PM

Simon, I'm perplexed that you:

• acknowledge that the flag is important as a symbol, placing it squarely in the domain of political speech

•acknowledge that constitutional protection of speech applies especially to political speech

•and then go on to speak in favor of amending the constitution

It's a good point that an amendment would allow this exception while preserving your ardent desire to make our country work within the confines of your treasured originalist philosophy. But you leave aside any comment about how such an amendment would introduce either an internal contradiction, or a new exception. Is it your view that such an amendment, should it be added to the coinstitution, should be added as an amendment to the first amendment(?)...:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, except, as it regards the exercise of free political speech, in which case burning the American flag as an expression of dissent shall be prohibited.

Since the new amendment would bear directly on the first, we need to relate the ideas, right? Otherwise, the judges would have to decide which one takes precedence. We can't have them acting beyond their proscribed technical role, can we? Otherwise how would we prelace them with an IBM 9 billion series Supreme Courtinator?

And what would you say to those, like me, who predict that passing such an amendment is likely to increase the incidences of flag-burning, as well as the burning of things that are like american flags, but are not in fact officially American flags? And should this happen, what new laws would you propsoe to remedy this? Or how would you word the amendment to also cover offensive American flag-like burnings.

In my speculations on the very plausible results of this amendment passing, I find an amazingly singular ease in reaching absurdity. I submit to you and others here that this is a gigantic clue as to the merits of such an amendment.

I am perplexed to hear an avowed originalist and conservative tacitly joining forces with the politically correct mind police by fashioning his own brand of mind policing. This is solid evidence to me that mind policing is either jumping the shark, or reaching a new level of dangerousness as fostered by the widespread American dereliction of duty in understanding what has really made this country great.

To whoever pointed out media coverage, I was calling attention to the fact that the PA case was covered, but the OH was not. I'm going to check again to see if it has surfaced.

Posted by: bk at July 26, 2005 08:24 AM

As of this A.M. 7/26, neither CNN, Fox, nor MSNBC, shows coverage of this story upon a search for "Timothy Hines." I take the Fox failure as calling into the question the notion that this coverage gap is due to MSM bias. I further note that Yahoo News pops it right up. If we want real bias-free coverage, place another W in the column of the aggregators.

Posted by: bk at July 26, 2005 08:33 AM

If those ideas are worth fighting for - and our history demonstrates that they are - it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.

But Simon, this is simply a declaration, not anything approaching an explanation. The obvious question gone begging here is this: why? Why can't it be true that the flag doesn't need (contra the clever framing of "worthy") protection?

Do you or do you not buy into reason, and into the ways in which we fight for ideas? That way is through the free marketplace of ideas, which is why political speech is protected. The ideals that the flag symbolizes are indeed worth protecting. And the way to protect those ideals is by passionately defending them in open debate that examines the true nature of their worth. The wrong way to protect them is to proscribe this debate by beginning to place certain manifestations of this debate into an "off limits" category.

Posted by: bk at July 26, 2005 08:45 AM

Burning the flag IS political speech, whether we like it or not. The flat is a SYMBOL of the country, but it is not the country itself. To make burning a piece of cloth illegal is to violate the spirit of the First Amendment. It's true, there are exceptions to absolute free speech, but those are generally designed to promote safety or prevent injustice (eg. libel) to individuals. As offensive as flag burning is, it does not endanger safety (except to the obvious exent that arson is dangerous, but this covered by other laws). It also does not injure individuals except perhaps causing psychological pain.

The idea that the flag represents the country and those that dies to defend it and, therefore, it deserves special protection is pernicious because where do you draw the line. What about people that criticize the Constitution? Isn't that more representative than the flag? Should such speech be prohibited?

Simon, your quote from Justice Story simply illustrates why, IMO, originalism is such an unwise idea with respect to constitutional interpretation. Clearly, at the time that Story wrote, society's ideas of what free speech meant were much more limited than what we have come to accept. It makes no sense to me to say that we have to interpret the constitution in line with an 18th century understanding, when our own sensibilities are so different.

I simply do not see the rationale for banning flag burning. Free political speech is free political speech and I think we have more important stuff to worry about than arresting some jerks that want to burn the flag.

Posted by: MWS at July 26, 2005 09:57 AM

Brian,
I point out that my support for this amendment is lukewarm, as implied by my statements that "I have mixed feelings about the amendment, and I offer three underlying reasons why I find myself more inclined than not to support it"; my comments fall far short of a ringing endorsement. Both yourself and Nicrivera have nailed very good arguments against it, and they're very, very strong arguments.

However, with that having been said, I'll respond to a couple of points in your comments.

As regards "an amendment would allow this exception while preserving your ardent desire to make our country work within the confines of your treasured originalist philosophy" - I've made the point before and I'll make it again that I'm not necessarily opposed to change. I would have no problem whatsoever, for example, if the General Assembly of the great state of Indiana banned the death penalty - not just for retards, not just for minors, but for everyone. Or you can look at Kelo - I think it would be pretty stupid for the people to repeal the public use clause, but they have the right to do so. So I don't have a problem with change, I just reject the courts as the venue for change.

In terms of the mechanism for how an amendment like this would function, I don't see that it's especially difficult, insofar as Judges know how to treat two statues that are in conflict - the more recent statute prevails, it implicitly repeals those parts of the earlier statute with which it conflicts. Likewise, let's say this amendment passes, and Congress enacts a law prohibiting the burning of the flag. And let's say George Carlin (because c'mon - you must want to see Nino and George in a verbal scrap as much as I do) thinks this is a terrible idea, and burns a flag on stage. He then challenges his arrest, saying that his 1st amendment rights are violating this law. The Court would look at the case, and since it can't ignore the 28th amendment, it would have to conclude that, since Congress is specifically empowered to enact such a law, and since there is no hierarchy among the amendments, each one carrying equal weight, even though it's an abridgement of free speech, the law is valid. On the other hand, that's not to say that the court couldn't later find the law an unconstitutional taking, as Nicrivera pointed out. I think that's a very strong argument, and if the memory serves, the Court has been willing to invalidate laws which place substantial restrictions on the use of private property as a de facto taking (I can't remember any particular citations, but I'm sure there was a church out in California, and the county said they couldn't use some land they owned, and the Court held that such a restriction might as well be a taking).

So I thinkk you described my support correctly when you called it "tacit"; I don't deny that there are major practical difficulties with this move. Nor do I deny that it is an attempt to render constitutional a legislative act which is entirely unconstitutional at this time. But, as I said before, I have strong feelings about the desecration of the flag (most likely not nearly as strong as those who have served under it), and if the people vote in the democratic process to permit the prevention of that act, I'm not entirely willing to stand in their way. My goal isn't to pursuade anyone to support it, just to note that I think that there are not only good arguments against, but also some fairly coherent arguments (as opposed to the hysterical arguments often offered by proponents) for.

Lastly, although no-one has yet brought it up, I'll bring up the very best argument against this amendment, which is that tyranny is rarely accomplished in a single step, but rather, in a series of seemingly innocuous and discrete steps. Thus, The Jaded JD has argued that Roper was a logical consequence of following precedent, and Cengel has rebutted that no-one walks a mile in a single leap - rather, they walk a mile one step at a time, but either way, when they're done, they're still a mile from where they started. Once we accept a limitation on political speech, once we move the baseline, once we grow the envelope, how do we know that the next time someone reaches the edge of the newly-expanded envelope, and declares that they need more lattitude, the people will have the good sense to measure their demands from the first amendment, not the twenty-eighth? I submit that we don't know that, and that "no burning the flag" is far closer than it might at first appear to "no criticizing the government" than it is to "freedom of speech".

Posted by: Simon at July 26, 2005 09:59 AM

How about this for a centrist compromise. We don't pass any law legaly restricting the right to burn a flag.... however we pass one that legaly defines the act as "extreme provocation" for any American citizen that witnesses it. Therefore you are free to burn the flag but not free to charge anyone with assualt who beats the tar out of you after witnessing it ;)

Posted by: cengel at July 26, 2005 10:10 AM

MWS - the constitution has to mean something, and unless you have something to offer as a practical alternative to original meaning, I would again offer the quote from Scalia that "I don't say it's perfect, I just say it's better than anything else".

If modern society thinks so very differently that the Constitution is compatible with those view, then the framers thoughtfully included a legitimate way to bring the constitution into comport with the exigencies of society's evolving standards of decency: you'll find it in the Constitution, between articles IV and VI.

In any instance, I don't think the Story quote leads to that conclusion at all. He was arguing exactly what I argued in the post where I would have inserted the quote: "Free speech has never been considered carte blanche to libel, to incitement or 'yelling fire in a crowded theater', to fighting words, to obscenity". Add to that list preposterously false or fraudulent advertising, for one thing. Or even McCain-Feingold, which specifically constitutes a limit on political speech - yet I think most people in the mainstream of society would argue that campaign finance reform is a desirable thing. So I think those values are still very much with us today, and I think society fully accepts - perhaps more so than the Constituion admits - that some limitations on some kinds of speech are wise and prudent.

Posted by: Simon at July 26, 2005 10:13 AM

Lt. Gov. Catherine Baker Knoll has issued a written apology to the widow of the soldier whose funeral she disrupted.

Posted by: Tully at July 26, 2005 10:26 AM

Does this written apology give us any reason to think she's really sorry for what she did?

Unless it does, it doesn't count for squat in my view.

Once we accept a limitation on political speech, once we move the baseline, once we grow the envelope, how do we know that the next time someone reaches the edge of the newly-expanded envelope, and declares that they need more lattitude, the people will have the good sense to measure their demands from the first amendment, not the twenty-eighth? I submit that we don't know that, and that "no burning the flag" is far closer than it might at first appear to "no criticizing the government" than it is to "freedom of speech".

I couldn't agree more.

In general, the major risk of expansive interpretation of the constitution is the one of "how do you know when you are leaving the ballpark?" I thought O'Connor's Kelo dissent addressed this issue wisely, in asking what sorts of things are NOT public use under the new ruling. Randy Barnett and probably a whole host of others have mentioned that they'd like prospective justive Roberts to explain what, in his view, are some examples of things that interstate commerce.

Iif an expansive reading leads you to a point where you are rendering the original words meaningless, because the expansion has grown to include everything, you've left the ballpark and fallen of the cliff. As I've said before, I'm ok with expansive readings in some cases and with letting the law grow to meet the people's needs, but the reasoning should cycle in a feedback loop through the original wording in some meaningful way.

Posted by: bk at July 26, 2005 10:57 AM

I offered the Knoll apology as confirmation that the incident actually occured. Our previous sourcing was thin.

We can make all the free-speech arguments we want, but this incident had nothing to do with free speech, and everything to do with theft, vandalism, and arson.

Posted by: Tully at July 26, 2005 11:43 AM

Therefore you are free to burn the flag but not free to charge anyone with assualt who beats the tar out of you after witnessing it ;)

That's a good thought, Cengal, especially in my neck of the woods, but unfortunately, our graveyards are full enough right now. ;-)

Posted by: Blue Jean at July 28, 2005 07:47 PM

Most municipal areas ban public burning of anything bigger than a cigar without a permit. The traditional charge hasn't been flag-burning, but "inciting to riot." Something to think about, anyway.

Posted by: Tully at July 28, 2005 10:48 PM

UPDATE: Teens arrested for burning 20 small U.S. flags

Police said the boys apparently did not know the significance of the flags they took from the yard and set afire under a car belonging to the soldier's sister-in-law. The vehicle was destroyed.

The 13 yr old and 15 yr old were charged with felony arson and misdemeanor criminal mischief.

Posted by: Tully at July 31, 2005 04:44 PM
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