# if flag-burning becomes illegal, the damned thing deserves to get burned **URL:** \ **Category:** Great Debates\ **Created:** [October 18, 2001, 11:07am UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191 "2001-10-18T11:07:46Z")\ **Posts on this page:** 13\ **Page:** 4
**Author:** ![pldennison](https://avatars.discourse-cdn.com/v4/letter/p/9fc29f/32.png) [@pldennison](https://boards.straightdope.com/u/pldennison)\ **Post date:** [October 19, 2001, 5:43pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/61 "2001-10-19T17:43:04Z")
> [@](#): > > \*Originally posted by december \* > \*\* > > > [@](#): > > > > \*Originally posted by pldennison \* > > \*\*I can assure you, with utter clarity, that no object that I go into a store and pay for with my money is in any way “public property.” I can further assure you that anyone who tries to treat any such object in that matter will walk away quite unhappy. \*\* > > Note that you are restricted in how you use your own mail box. \*\* Er . . . note that you also are restricted in how you may use my mailbox. What does that have to do with whether the flag I bought at Target is “public property” or not? ---
**Author:** ![pldennison](https://avatars.discourse-cdn.com/v4/letter/p/9fc29f/32.png) [@pldennison](https://boards.straightdope.com/u/pldennison)\ **Post date:** [October 19, 2001, 6:13pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/62 "2001-10-19T18:13:39Z")
In fact, december, now I’m disproportionately curious as to what you thought your point was. The government restricts how I may use my car, but my car isn’t public property. If I had a handgun or rifle, they would restrict how I could use them, but that wouldn’t make them public property. On all of my A/V equipment, there are notices about FCC restrictions on the use of that equipment, but my television and stereo are, clearly, not public property. So, really, what was the whole mailbox thing about? ---
**Author:** ![gobear](https://avatars.discourse-cdn.com/v4/letter/g/8dc957/32.png) [@gobear](https://boards.straightdope.com/u/gobear)\ **Post date:** [October 19, 2001, 6:38pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/63 "2001-10-19T18:38:40Z")
Gah! 1. An amendment banning burning flags is an unconstitutional abridgement of the First Amendment, and the Supremes already held in [UNITED STATES v. EICHMAN, 496 U.S. 310 (1990)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/496/310.html)that > [@](#): > > the Government’s interest cannot justify its infringement on First Amendment rights. This conclusion will not be reassessed in light of Congress’ recent recognition of a purported “national consensus” favoring a prohibition on flag burning, since any suggestion that the Government’s interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment. While flag desecration - like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures - is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. so that settles that. **Night Rabbit** , you wrote > [@](#): > > If you’ve taken history you know that rights can be limited and suspended in times of national crisis and when they present a “clear and present” danger to the populace ( **Gobear** pulls out the Jailhouse Lawyer card.) [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/249/47.html](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/249/47.html)"]SCHENCK v. U.S. , 249 U.S. 47 (1919) , was one of the Supremes’ biggest blunders. During WWI, Charles Schenck, secretary of the Philadelphia chapter of the Socialist party, prepared and distributed an antidraft leaflet to mail to men whose names were listed in the newspaper as having passed their army physical examinations. The leaflet asked readers to sign a petition opposing the draft. He and four associates were arrested and charged under the Espionage Act with conspiring to obstruct the draft. Three defendants were acquitted by the federal court, but Schenck and one associate were convicted. Justice Oliver Wendell Holmes wrote and delivered the unanimous opinion upholding the convictions. The full quote you cited goes: [quote] The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. **When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.** (bolding mine) Holmes acknowledged that Schenck’s leaflet advocated only signing a petition, but “the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out.” Not a proud day for the Supremes, IMHO. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [October 19, 2001, 6:42pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/64 "2001-10-19T18:42:30Z")
Consarn it! Them dagnabbed Republicans are tryin’ to _socialize mah flag!_ Maw! Git mah shotgun! ---
**Author:** ![MrVisible](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@MrVisible](https://boards.straightdope.com/u/MrVisible)\ **Post date:** [October 19, 2001, 7:07pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/65 "2001-10-19T19:07:29Z")
The amendment to the constitution would be entirely unnecessary. The American flag seems to be quite able to [defend itself](http://www.azcentral.com/news/articles/breaking/1008Attacks-Pakistan-Protest-ON.html). Remember kids, if you’re gonna burn the flag, fire safety is your friend! ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [October 19, 2001, 7:13pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/66 "2001-10-19T19:13:30Z")
> [@](#): > > \*Originally posted by pldennison \* > \*\*In fact, december, now I’m disproportionately curious as to what you thought your point was. The government restricts how I may use my car, but my car isn’t public property. If I had a handgun or rifle, they would restrict how I could use them, but that wouldn’t make them public property. On all of my A/V equipment, there are notices about FCC restrictions on the use of that equipment, but my television and stereo are, clearly, not public property. > > So, really, what was the whole mailbox thing about? \*\* pl, you clearly got my point., becasue you gave a good response. I meant to complain (mildly) that my own mailbox is treated as quasi-public property. The restrictions on cars, guns, and A/V equipment are for the sake of safety. The restrictions on my mail box are for the convenience of the Post Office. I’m kind of sorry I brought this up; it’s of no importance. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 19, 2001, 7:23pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/67 "2001-10-19T19:23:17Z")
Just to clarify: _You_ own your mailbox. The US Postal Service owns the space inside it, and has exclusive rights to that space as well as access rights. You have legal responsibilities to place your mailbox in a location and at a height the local postmaster delegates it, and to maintain it appropriately as its owner so that the USPS can use the space inside in the manner it’s responsible for. If that bothers you, send a letter to your Congressperson, who will pass it around the office for laughs and place it in the “Wastes of Time by Belligerent Cranks” file, along with the letters from the flag people. ---
**Author:** ![gobear](https://avatars.discourse-cdn.com/v4/letter/g/8dc957/32.png) [@gobear](https://boards.straightdope.com/u/gobear)\ **Post date:** [October 19, 2001, 7:24pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/68 "2001-10-19T19:24:43Z")
Just so we’re clear, I’m with **Sua Sponte** on **Night Rabbit** ’s lack of knowledge of the “clear and present danger” doctrine, that is, the government can punish speech when it creates an immediate threat of criminal action. > [@](#): > > As a nation, we’re presently going through a rather patriotic/nationalistic phase, and burning a flag under these circumstances could indeed be argued as creating an anti-american/pro terrorist sentiment that does, believe it or not, create a clear and present danger. Sorry, bub, burning a flag is not equivalent to falsely shouting “Fire!” in a crowded theater. As Justice Holmes later wrote in his [dissent](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=250&invol=616) on Abrams v. U.S. (1919) > [@](#): > > But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [October 19, 2001, 9:15pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/69 "2001-10-19T21:15:31Z")
Unless you’re burning the flag near a pile of oily rags. In a dry grassy plain. With a welding torch. Okay, I’ll shut up now. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [October 19, 2001, 10:11pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/70 "2001-10-19T22:11:34Z")
> [@](#): > > \*Originally posted by MEBuckner \* > (No one is claiming you have the right to burn a flag in a crowded theater…) Do you have the right to yell “Someone’s burning a falg” in a crowded theater? 🙂 > [@](#): > > Clearly, it’s important to “the community’s emotional security” that we have strong leadership at a time like this. Therefore, public criticism of the President should be outlawed. MEBuckner, how could you possibly say that stifling criticism of the president is necessary for our emotional security? That’s absurd. What we really for emotional security is for Christina Aguilera and her ilk to go away. Bricker: > [@](#): > > Guin, your point is meaningless. The OP and previous discussion generally postulate the passing of a flag-burning amendment… at which point, the Constitution will definitively not be “trampled” by forbidding flag burning. Well, I guess it depends on whether you consider “Constitution” to be a value or variable parmeter. When I say “Constitution”, I’m usualy referring to the Constitution **as it currently stands** , not some hypothetical future version of it. In that sense, this amendment would trample the Constitution. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [October 19, 2001, 10:21pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/71 "2001-10-19T22:21:51Z")
> [@](#): > > Well, I guess it depends on whether you consider “Constitution” to be a value or variable parmeter. When I say “Constitution”, I’m usualy referring to the Constitution **as it currently stands** , not some hypothetical future version of it. In that sense, this amendment would trample the Constitution. In that sense, EVERY amendment “trampled on the Constitution.” The point of an Amendment is to change the Constitution as it currently stands. ---
**Author:** ![Rysdad](https://avatars.discourse-cdn.com/v4/letter/r/7cd45c/32.png) [@Rysdad](https://boards.straightdope.com/u/Rysdad)\ **Post date:** [October 19, 2001, 10:39pm UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/72 "2001-10-19T22:39:53Z")
> [@](#): > > \*Originally posted by Libertarian \* > \*\*[…applauding and saluting Rysdad…] > > No wonder I admire you so much. \*\* Wow! Thanks, Lib. [sub]I feel an “aw, shucks” comin’ on.[/sub] ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [October 20, 2001, 3:06am UTC](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191/73 "2001-10-20T03:06:40Z")
> [@](#): > > \*Originally posted by gobear \* > Gah! > > 1. An amendment banning burning flags is an unconstitutional > abridgement of the First Amendment, and the Supremes already held in [UNITED STATES v. EICHMAN, 496 U.S. 310 (1990)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/496/310.html)that… I think you are a bit confused here, **gobear**. What the Supreme Court ruling held is that a **law** against flag burning is unconstitutional. This is why the goal is now to have a constitutional amendment to make a specific exception to free speech for the case of flag burning. Unfortunately, the danger of this happening remains very real. [Previous page](https://boards.straightdope.com/t/if-flag-burning-becomes-illegal-the-damned-thing-deserves-to-get-burned/88191.md?page=3)