How the hell is it fallacious? You say something, I say “oh really? I’m not sure about that. Can support your assertion?” In any event, that the burden of proof is on the asserter is the accepted rule in GD. MC, you don’t have to play here. You are certainly welcome to, but don’t expect us to change the rules to accomodate you.
Yes, you have cited McCarthyism. I have cited Communist and collaborationist witch-hunts in Europe. You claim that McCarthyism was worse. I have no idea whether it was or not. If you wish to convince me that is was, give me some facts.
Finally, freedom of speech is one aspect of human rights, true. It is also the subject of this debate. If you want to discuss human rights, fine - start another debate. But in the debate we are having, you have made assertions about the freedom of speech records of America v. Northern Europe - and you have done nothing to prove your case.
Please do so, or concede that you are simply stating your opinion. There is a forum on these boards for that, called In My Humble Opinion.
When one finds that one has dug one’s self into a hole, the prudent action is to stop digging.
(Now go out and bring back some evidence that “Northern” Europe has a better record of protecting speech over the last fifty years or be prepared to be laughed at, a lot.
(I’m don’t even have a strong opinion on the subject, but you made the assertion and you need to support it or retract it (or, at least, stop repeating it if you have no evidence).)
Of course, the SCOTUS has already ruled that flag-burning is protected speech. If the Court allows the banning cross-burning, we could wind up with a situation where each new symbolic act had to be individually decided by SCOTUS. Kind of like the pornography definition I know it when I see it.
I disagree with this, based on the established fact that flagburning citizens don’t have a long and well-documented history of rallying around a burning flag before going off to commit acts of mayhem, or of using a burning flag as a warning to someone and then later killing that person. Flagburning and crossburning are both established traditions in the US, but they’re very different traditions.
If you could attach words to the symbolic messages of the two, flagburners would be saying something like, “We hate this country and this government and its acts and its policies.” That’s classically protected speech. Crossburners, OTOH – especially ones that burn crosses immediately in front of a specific minority family – are traditionally saying, “We’ve got an eye on you, and we just might kill you.” That’s classically not protected speech.
In some ways, defending crossburning almost sounds like defending someone who says, “I’m gonna kick your ass!” because maybe they’re talking about kicking a donkey that they mistakenly believes their victim owns. We all know what they meant by what they said; the fact that they can come up with an absurd alternate meaning for their words isn’t the least bit relevant to judging whether it was a threat.
While I do not believe that the Virginia law will (or should) stand as written, your example makes an unsupported assertion: we have 135 years of history in which cross-burning was a specific example of intimidation to specific groups; I have never seen an example of a flag burning in which the burner was actually advocating that the government be violently overthrown. (I am sure that there have been some, but all the flag burnings that I have witnessed were simply random acts of anger expressed against “the establishment” and the flag burnings about which I have read were either similar acts of protest against some vague notion of “oppressive power” or were condemnations of specific actions by the U.S. that did not call for its overthrow–especially in violence. So, while it may have been used to indicate a desire to overthrow the government in some cases, there is no tradition of that use, so there is no way that the government can assume that intent.
OK, I misunderstood you. I think that Bob Burns burning a cross in John Smith’s yard can constitute a threat. But the issue is whether you can ban cross burning instead of banning threats. I don’t believe the state should single out a particular expression and criminalize it.
I’d guess many cross burnings on another’s property would be threats, but Virginia’s statute assumes the intent. Prosecute people for making threats, don’t set up approved and disapproved lists of expressions.
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I disagree with this, based on the established fact that flagburning citizens don’t have a long and well-documented history of rallying around a burning flag before going off to commit acts of mayhem, or of using a burning flag as a warning to someone and then later killing that person.
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I still question whether this assertion is enough to prohibit the activity. A lot of people have said cross-burning is a threat. But I’d like to see a recent correlation between the two. The KKK burns a cross at the end of each meeting. Do they normally commit violent acts immediately afterward?
I don’t doubt that cross burning and lynching are historically two activities of the KKK, but I’m not convinced burning a cross is an inherent threat. There are still cross burnings, but outright violence by the KKK is lower than it used to be. If we accept that historically crosses were burned then minorities were targeted, then perhaps swastikas should be outlawed. Historically, when that flag was flown, lots and lots of people were killed.
Some of you may be confusing prima facie with irrebuttable presumption.
The phrase that appears in the Virginia statute merely means that, without other evidence, the burning of a cross permits the trier of fact to conclude that the intent was to intimidate a person or group of persons. The burden falls to the defense to show that the intent was not to intimidate. The law doesn’t foreclose inquiry into this issue; it merely establishes a rebuttable presumption that cross-burning=intimidation, with the accused perfectly free to offer evidence to the contrary.
MC Master of Cermonies, it is absolutely not “fallicous” to argue the burden of proof is on the “arguer.” The burden of proof belongs to anyone making an assertion. A gratuitous assertion - that is, one without supporting evidence - may be equally gratuitously denied. It’s always up to the person advancing a claim to provide the proof, and the more extraordinary the claim, the more extraordinary the proof required.
Perhaps you meant to point out that you had provided proof. You mentioned McCarthyism, which certainly demonstrated a certain measure of ruthlessness and witch-hunting. Since the McCarthy era’s abuses are well-known historical fact, you may feel that you’ve met your burden.
But SuaSponte also offered the reminder of Communist and collaborationist witch-hunts in Europe, effectively batting the ball back into your court. The burden now rests with you to show how McCarthyism was far worse than what went on in Europe - or, in the alternative, to withdraw your claim.
IANAL but my experience with the Workers Compensation system was that supposedly rebuttable presumtions often amounted to irrebuttable presumption. E.g., in California, the law has a rebuttable presumption that a fireman’s or policeman’s heart problems are work-related. In practice the presumtion cannot be rebutted, because there’s no way to say exactly what factors contributed to heart problems.
In the case of the VA statute, in any real-world application, I doubt that one could prove that the intention wasn’t to intimidate. (I’m excluding a cross-shaped barbecue grill or lamp.) A KKK branch could claim that their burning cross represented general hatred, not a threat, but who would buy it?
I’ve always heard bad things about the UK’s Official Secrets Act; that it’s very broadly worded and very threatening to freedom of speech.
I guess it’s up to you to prove me wrong.
Actually I had just recently read this opinion piece by John Dean on criminal defamation laws, which discusses a recent criminal defamation prosecution in Kansas.
Wow, ME, I knew that criminal defamation laws were still on the books in some states, but I thought they were treated like old horse-thieving laws - a relic that no one had gotten around to eliminating from the books yet.
Actually the UK’s OSA can lead to free speech violations but AFAIK the US operates a highly simlair system where something can be suppressed for national security reasons.
Cite? (Kidding, I’m kidding).
Actually, you are largely incorrect. Read the opinions set forth in this case, the famous Pentagon Papers case.
Persons who reveal confidential information to the press can be prosecuted, if they have agreed that they can be prosecuted. The way the U.S. generally deals with the issue of government secrecy and its inherent conflict with free speech is that it requires people seeking security clearance to agree that if they reveal what they are granted permission to view, they have committed a crime. If you did not sign such a waiver and reveal government secrets you have obtained in some other way, you have not committed a crime (except for such limited instances as you may be jailed for publishing information about the location and disposition of U.S. military forces during war time.
The waiver system is perfectly acceptable from a free speech point of view. If you agree to conditions before you see the information, it is proper to penalize you if you violate those conditions.
The OSA is very different. Under that law, a person may be prosecuted/publication suppressed for publishing secret information, even if the person never agreed to waive their free speech rights. That is exceedingly harsh.
What else would I not be allowed to do on my own property under this standard? Post a sign supporting war in Iraq (with my Muslim neighbors across the street)? Host a BDSM party with all my freaky friends? Own a firearm? Play spooky noises on Halloween night?
I don’t do any of these things, mind (well, I do the spooky noises thing now and again… I go elsewhere for the BDSM), but you’re on an awfully slippery slope when you start defining what people can and cannot do on their own property, with their own time and money. I think you would agree that nothing gives me the right to tell you what to do (or not to do) on your property, and the reverse is also true, however uncomfortable or offended you might feel about it.
Actually you are wrong about the OSA, I imagine it is posiible to prosecute someone who hasn’t signed the OSA but whether or no that has ever happened is another thing.
I myself have signed the official secrets act (why? I could tell you but I’d have to kill you) and infact anyone involved in any kind of work in the public sector (including contractors) has to sign it.
Basically anyone who has ever been exposed to information that could in any way be regarded as sensitive has signed the act.
A great rule, Avalonian, is to read an entire thread before responding to a post in it. That way, you’ll see the later post where someone apologizes for ambiguous wording and rephrases it.
Is there a standard the state has to meet to establish when a tradition has been established such that a burning cross constitutes a threat, even with no immediate component to it?
Is what the person says what he “really” meant by it irrelevant?
Could the state present examples of other kinds of symbolic speech that were closely followed by violence, and then argue for banning those symbols?
I am thinking of a law that says that flag-burning shall always be interpreted as a call for the violent overthrow of the government, regardless of what the burners claim.
Sorry to bring up flag-burning again, but I can’t think of a more neutral example.
