Common sense dictates that flag burning is NOT SPEECH, free or otherwise. It is arson and vandalism of the intellectual property of the people of the United States and a treasonous act.
In my view Trump’s remedy is mild. It should be revocation of citizenship and immediate deportation.
The law is an ass on this subject. Hopefully, Trump’s executive order will trigger judicial review that will reverse applicable case law and allow Congress to act to put an end to the carte blanche enemies within have had for all too long to desecrate the flag that millions of Americans have died to defend. Such a law should be enacted on Memorial Day. I can think of no better way to honor our fallen veterans.
As to the fate of the inevitable rash of TDS sufferers who defy such laws? Good riddance. There is no better way to weed out undesirables. In fact, it is merciful to sever their connection and end their tenure in a country they apparently hate so much.
As to the effect on speech? There is nothing that cannot be communicated by means other than flag desecration.
By legal precedent there is wiggle room. But the EO states “ prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority”
They won’t put the text in the article at FIRE. A lie by omission.
col, you could be accused of the same. You ignored the most important part of Trump's unconstitutional order (Section 1 Purpose):
"Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. . . . The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security."
Trump expressly targeted expression and communication because of its political content and even its viewpoint. Trump even (kindlly) targeted expression and communication because he personally considered it to be merely "offensive and provocative," a mere "statement of contempt" or "hostility," and even "the clearest possible expression of opposition to the political" viewpoint Trump purports to support.
Any “viewpoint discrimination” is an “egregious form of content discrimination” that is even more clearly “presumptively unconstitutional” than other discrimination based on the content of communications. SCOTUS has emphasized that principle repeatedly, including in Iancu v. Brunetti in 2019 (quoting Rosenberger v. Rector and Visitors of Univ. of Virginia in 1995).
Clearly, Trump's order is about much more than merely flags. Trump's order is expressly about establishing an orthodoxy in politics. As SCOTUS emphasized in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943):
"[Our] freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
[It is a] fixed star in our constitutional constellation [] that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
[T]he First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
For all your words (and quotation for that matter) intended to obscure reality,
"...expression of opposition to the political union that preserves our rights, liberty, and security.",
is not a partisan sentiment and seems likely only to offend those that seek to undermine the preservation of such rights, liberty, and security.
This order reflects the ability of the Executive to prioritize the prosecution of such law as it deems expedient to its purposes. Law which is in effect a priori.
The mass unchecked & facilitated entry of aliens into the US has created a substantial population of noncitizens (at the discretion of the prior Executive, to speak of omissions....) Permitting noncitizens or otherwise to believe that this is a country of lawlessness and that they are free to injure the rights, liberty, and security of citizens will have disastrous consequences. So they shall learn.
The public opinion of which you speak must be confined, minimally to citizens. Not granted to aliens and globalists, neomarxists, or communists.
The key distinction here in my view is the difference and speech. Action cannot commonsensically be construed as speech without condoning anarchy.
What if I decide to set off a thermonuclear bomb to make a political statement and when apprehended claim 1st Amendment protection? Should be left unmolested and allowed to reiterate my speech there is no United States?
George, obviously expression is action. That's a fact. It's common sense.
It's also common sense that mere violence cannot be justified by confusing it with expression. You're not talking about the First Amendment anymore. You're talking about the Second Amendment. You're talking about what the Preamble addressed as "the common defence" and "the general Welfare" or what Article I addressed as "War."
George, as far as I can ascertain you never make any sense. You say things that have no meaning. There’s no logic and no evidence in anything I’ve seen you say.
George, I strongly dislike seeing people burn our flag or even fly it upside down. I especially don't like seeing people who never did anything for this country do such things. Even so, it's blatantly unconstitutional for our public servants to retaliate for such expression or communication. If you want to see discussion of a particularly relevant SCOTUS decision, check out "Thank God for Dead Soldiers" https://blackcollarcrime.substack.com/p/thank-god-for-dead-soldiers?r=30ufvh. Having served as a soldier--knowing what servicemembers and our families suffer and sacrifice to fulfill our oaths to support and defend our Constitution--I think that such speech in such context is significantly more offensive than someone burning our flag. But SCOTUS (repeatedly) emphasized that such inflammatory and intentionally hurtful attacks on public servants and their families is protected for a crucial reason that is another expression for the sovereignty of the people: self-government. SCOTUS did it again very recently in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023).
It is said that the law is an ass. The Substack you cite is in my mind a good example. While SCOTUS countenances such despicable speech as protected under the 1st amendment, we live in a world in which uses of racial epithets among other speech make the speakers culpable under hate speech statutes.
In my view, which is absolutist, all of the above, no matter how distasteful, is a necessary evil under our constitution.
However, burning a flag is not. Setting ablaze is not speech. It is neither verbal nor written, nor visual communication.
To me, it is a desecration of the flag, destruction of the intellectual property we, the people of the United States, hold dear, and a hate crime against the people of the United States.
I am not and have never seriously aspired to be a lawyer, much less a constitutional lawyer.
My Substack is called Common Sense, which I consider to be the zenith of wisdom, and often at odds with the intellectual contortions of law. My common sense tells me that the vast majority, probably 80% of Americans, agree with you and I that burning the flag as an act of protest is an outrage, an insult, and a moral obscenity to every patriotic American and especially those who have devoted the best years of their lives, and in all too many cases made the ultimate sacrifice, or perhaps even worse, spent the rest of their lives as wounded warriors.
I do not believe that the sophistry of nine individuals ought to condemn the rest of us to tolerate the intolerable.
I am hopeful that President Trump’s EO on the issue (which I frankly don't think goes far enough with a mere one-year penalty) will trigger judicial reconsideration and subsequently congressional action to right this wrong.
As a writer, I cannot think of anything that can be more articulately expressed through words —either written or spoken, images, or some combination thereof, than by igniting our flag. It is not my intent to infringe on our constitutional right to freedom of speech. It is, as you so eloquently articulate, perhaps the first and foremost virtue that makes America a country worth fighting for, which becomes more apparent every day as we watch Europe intolerably constrict speech to the point of inciting rebellion.
However, freedom of speech does not require us to tolerate the impudence and disrespect expressed by miscreants and malcontents who spit in our faces by burning our flag.
If they cannot find another way to express their discontent, no matter how repugnant, all parties involved would be better served by their removal from the rolls of citizenship and their presence in our country.
My remedy is consistent with the ancient Roman practice of exile.
Perhaps absence will make their hearts grow fonder toward the country they once so contemptuously scorned. Perhaps they should be allowed an opportunity to do penance.
But absent such remorse, such individuals should forfeit the rights, benefits, and privileges of citizenship in the greatest country in the history of the world.
George, I appreciate people who truly do appreciate the service and sacrifices of our servicemembers. If you truly do want to thank us for our service, then please care about the reason we served.
The oath of every executive branch employee below the president is in federal law (5 U.S.C. 3331). We all promised that in all official conduct we would "support and defend" our "Constitution" against "all enemies, foreign and domestic" and "bear true faith and allegiance to" our Constitution. The oath of the president is in our Constitution. He promised that in all official conduct he would "preserve, protect and defend" our "Constitution" to "the best of" his "Ability." None of us swore to do anything at all for a mere flag or a mere person or a mere party.
Another thing about our oaths that is well worth keeping in mind is something I saw with my own eyes. Some of the people who were the most faithful to their oaths were not citizens. Many who serve (or who historically served) in our Armed Forces hope or hoped to become citizens. They actually did much more than many Americans to earn the rights too many of us take for granted.
George, it makes no sense to draw a categorical distinction between speech and conduct. Speech necessarily is conduct. Words without action simply aren't speech. They're mere thoughts.
It's an egregious mistake to take the words of the First Amendment literally. That is an obvious mistake, but it is made by many who purport to teach us the meaning of the words of the First Amendment. The words "freedom of speech" and "freedom of the press" or "liberty of the press" were and are mere symbols. They were and are slogans that stood for much more than mere speech or the mere use of the printing press.
The entire First Amendment is devoted to securing our freedom of thought, expression, communication, association and assembly especially for the purpose of securing our self-government and our liberty. Even religion is nothing more or less than the exercise of the foregoing.
I don't like flag burning, but I like far less the idea of trashing our Constitution merely to protect our flag. The flag is a mere symbol. "Regarding that issue, please consider "Now Might Be a Good Time to Forget the Flag and Remember the Republic." https://blackcollarcrime.substack.com/p/now-might-be-the-time-to-forget-the?r=30ufvh
The crux of the constitutional debate over the past 50 years or so has been between literalists and interpretivists who would find “hidden meanings” that the founders show no historical evidence of ever imagining in their wildest dreams.
Strict literalist fundamentalism is the dominant view of today’s SCOTUS. That's why I hope Trump’s EO prompts reconsideration of the current precedent.
Straying from the text renders it meaningless, enabling the discovery of rights such as privacy in imaginary “penumbras” and such. Jurisprudence is not astrology or theology. It is judging cases based on what the law says, not what progressives wish it said, or think it implies, or says between the lines, or in some hidden dimensions, legal analogs to string theory
In this case, speech means speech-verbal, written, or even visual portrayal. Setting the flag ablaze does not fall within any logical, rational definition of the term.
While we have our respective opinions, the ones that matter will begin to be rendered in the first week of October.
I admire your confidence and certitude in your view, therefore I am similarly confident that you will share my conviction that the Court should be given the opportunity to reaffirm its support for it. So I'm sure you’re grateful to the President for giving them the opportunity.
George, if you truly believe that enumerated rights don't protect "imaginary penumbras," then please explain what you think "religion" means.
If you truly believe that "Straying from the text renders it meaningless," then please identify the scope and significance of "the right of the people to keep and bear Arms."
I don’t think your question requires an answer from me. The literature exhaustively covers these issues. I have no burning issue with either area of law.
George, it's simple. It's common sense. Don't rely on labels and jargon and doctrine. I'm a simple soldier. So simply prove that something I wrote was wrong. The "freedom of speech" never was understood or meant by the Framers to be limited to the mere verbal or written expression of literal words. Try to prove that it did mean what you say, and I'll prove you're wrong. For thousands of years, flames and flags have been considered essential to expression.
Why do you think that would make me reconsider? It would only make me hurt you. Now, you're talking about the Second Amendment, not the First Amendment. As SCOTUS emphasized in District of Columbia v. Heller, the Second Amendment really isn't about mere arms. It's about the fundamental right of self-preservation. If you attack me, I have the right to protect myself by hurting you. It's common sense--and it's a right secured by our Constitution.
George, Trump's order is wildly unconstitutional for multiple reasons. In part, you're missing a huge blind spot. It is not the place of our public servants to dictate to us what to think or say (or not think or not say) about public people and public issues.
The crucial truth that is being obscured and overlooked is that our First Amendment rights and freedoms flow from our sovereignty, not from the First Amendment. The First Amendment is, essentially, a mere reflection of the sovereignty of the people. Don't take my word for this, take the words of SCOTUS and many opinions of many SCOTUS justices.
Six years after Texas v. Johnson, SCOTUS emphasized “the critical postulate” of our Constitution is “that sovereignty is vested in the people.” United States Term Limits v. Thornton, 514 U.S. 779 (1995). This principle always should be the starting point of all analysis of our First Amendment rights and freedoms regarding speech on public issues. Take the highly relevant example set by SCOTUS in Citizens United v. FEC, 558 U.S. 310 (2010):
Under our Constitution it is We The People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important—vitally important—that . . . no point of view be [even] restrained [much less] barred.
Speech [which clearly and necessarily includes voting] is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. In [our] republic where the people are sovereign, the ability of the citizenry to make [our own] choices among candidates for office is essential. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office. Discussion of public issues and debate on the qualifications ofcandidates are integral to the operation of the system of government established by our Constitution.
For these reasons, political speech [including voting] must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech [including voting] are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.
We always should bear in mind the crucial truths expressed by a unanimous SCOTUS in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (often quoting James Madison (often called the Father of the Constitution and the Father of the Bill of Rights)).
Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.”
One reason for “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” to be “the only effectual guardian of every” American “right.” But our freedom of thought, speech, press and assembly truly flow from our sovereignty. So in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
Clearly, public servants cannot “give public servants an unjustified preference over the public they serve” by giving any public servant more “immunity” than the people, themselves, “granted” their public servants. But the crucial truth is that people’s immunity flows directly from the people’s sovereignty.
Not necessarily to be cavalier, but the tl; Dr version is that SCOTUS is full of shit on this issue.
I remind you that this has happened before, for example, the Dred Scott decision.
These are human beings, not deities. We have a much different Court now. I hope we have a chance to hear what they think.
You may be pleased to know that even I don't think they will be nearly as draconian as I would like.
But you should know two things:
First, burning the flag was once so unimaginable that the first known instance did not occur until after almost 200 years of American history.
Second, over 70% of Americans say that burning the flag is never an acceptable form of protest.
We do not have to tolerate this. The Constitution, rightly interpreted, does not require us to do so. We should respond to President Trump’s leadership by banning it from the legal scope of citizenship and banishing those who violate its proscription.
George, I understand your outrage and the outrage of those who viscerally oppose anyone burning our flag. That was my reaction, too, years ago.
I also agree with your skepticism about so-called SCOTUS justices. They are only people, and sometimes they obviously decide issues the way they merely want to decide. Too often, they knowingly violate our Constitution. Almost always regarding our First Amendment rights and freedoms, the writing of SCOTUS justices is pretty pathetic. It often actually says nothing about the text or structure of our Constitution.
Instead of the anemic writing of SCOTUS justices, consider two pieces that robustly address the real issue. The real issue is that all public officials are our mere public servants. In general, it is not their place--our Constitution does not permit them--to dictate to us the content of our expression or communication.
I agree with all of that. I consider myself to be a 1st Amendment maximalist, as emotionally gut wrenching as it can be, with one notable exception with which you are by now all too familiar. 😏
It’s always wild to me that Lukianoff cries about safetyism but also thinks that if a pro Palestinian student doesn’t cater to the feelings of Zionist students that means the pro Palestinian student is a violent terrorist
“… prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority”
This is what it states. This entire article is an embarrassment and obfuscation. Sadly not below the standard of FIRE
Arson is not speech. Any commentary that people wish to make about the US may be done with actual words, whether spoken or in print. Time, place, and MANNER applies. Arson is inherently violent destruction and applying it to the representation of a person or people communicates exactly one thing: A lethal threat against the represented persons. Burning the American Flag as a "communicative act" should be legally treated as making terrorist threats because that's exactly what it is.
What happened to the good old days?: "You can call me anything you want, just don't call me late to dinner!"
Common sense dictates that flag burning is NOT SPEECH, free or otherwise. It is arson and vandalism of the intellectual property of the people of the United States and a treasonous act.
In my view Trump’s remedy is mild. It should be revocation of citizenship and immediate deportation.
The law is an ass on this subject. Hopefully, Trump’s executive order will trigger judicial review that will reverse applicable case law and allow Congress to act to put an end to the carte blanche enemies within have had for all too long to desecrate the flag that millions of Americans have died to defend. Such a law should be enacted on Memorial Day. I can think of no better way to honor our fallen veterans.
As to the fate of the inevitable rash of TDS sufferers who defy such laws? Good riddance. There is no better way to weed out undesirables. In fact, it is merciful to sever their connection and end their tenure in a country they apparently hate so much.
As to the effect on speech? There is nothing that cannot be communicated by means other than flag desecration.
By legal precedent there is wiggle room. But the EO states “ prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority”
They won’t put the text in the article at FIRE. A lie by omission.
col, you could be accused of the same. You ignored the most important part of Trump's unconstitutional order (Section 1 Purpose):
"Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. . . . The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security."
Trump expressly targeted expression and communication because of its political content and even its viewpoint. Trump even (kindlly) targeted expression and communication because he personally considered it to be merely "offensive and provocative," a mere "statement of contempt" or "hostility," and even "the clearest possible expression of opposition to the political" viewpoint Trump purports to support.
Any “viewpoint discrimination” is an “egregious form of content discrimination” that is even more clearly “presumptively unconstitutional” than other discrimination based on the content of communications. SCOTUS has emphasized that principle repeatedly, including in Iancu v. Brunetti in 2019 (quoting Rosenberger v. Rector and Visitors of Univ. of Virginia in 1995).
Clearly, Trump's order is about much more than merely flags. Trump's order is expressly about establishing an orthodoxy in politics. As SCOTUS emphasized in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943):
"[Our] freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
[It is a] fixed star in our constitutional constellation [] that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
[T]he First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
For all your words (and quotation for that matter) intended to obscure reality,
"...expression of opposition to the political union that preserves our rights, liberty, and security.",
is not a partisan sentiment and seems likely only to offend those that seek to undermine the preservation of such rights, liberty, and security.
This order reflects the ability of the Executive to prioritize the prosecution of such law as it deems expedient to its purposes. Law which is in effect a priori.
The mass unchecked & facilitated entry of aliens into the US has created a substantial population of noncitizens (at the discretion of the prior Executive, to speak of omissions....) Permitting noncitizens or otherwise to believe that this is a country of lawlessness and that they are free to injure the rights, liberty, and security of citizens will have disastrous consequences. So they shall learn.
The public opinion of which you speak must be confined, minimally to citizens. Not granted to aliens and globalists, neomarxists, or communists.
The key distinction here in my view is the difference and speech. Action cannot commonsensically be construed as speech without condoning anarchy.
What if I decide to set off a thermonuclear bomb to make a political statement and when apprehended claim 1st Amendment protection? Should be left unmolested and allowed to reiterate my speech there is no United States?
George, obviously expression is action. That's a fact. It's common sense.
It's also common sense that mere violence cannot be justified by confusing it with expression. You're not talking about the First Amendment anymore. You're talking about the Second Amendment. You're talking about what the Preamble addressed as "the common defence" and "the general Welfare" or what Article I addressed as "War."
That seems like risible sophistry to me.
George, as far as I can ascertain you never make any sense. You say things that have no meaning. There’s no logic and no evidence in anything I’ve seen you say.
George, I strongly dislike seeing people burn our flag or even fly it upside down. I especially don't like seeing people who never did anything for this country do such things. Even so, it's blatantly unconstitutional for our public servants to retaliate for such expression or communication. If you want to see discussion of a particularly relevant SCOTUS decision, check out "Thank God for Dead Soldiers" https://blackcollarcrime.substack.com/p/thank-god-for-dead-soldiers?r=30ufvh. Having served as a soldier--knowing what servicemembers and our families suffer and sacrifice to fulfill our oaths to support and defend our Constitution--I think that such speech in such context is significantly more offensive than someone burning our flag. But SCOTUS (repeatedly) emphasized that such inflammatory and intentionally hurtful attacks on public servants and their families is protected for a crucial reason that is another expression for the sovereignty of the people: self-government. SCOTUS did it again very recently in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023).
First and foremost, thank you for your service.
It is said that the law is an ass. The Substack you cite is in my mind a good example. While SCOTUS countenances such despicable speech as protected under the 1st amendment, we live in a world in which uses of racial epithets among other speech make the speakers culpable under hate speech statutes.
In my view, which is absolutist, all of the above, no matter how distasteful, is a necessary evil under our constitution.
However, burning a flag is not. Setting ablaze is not speech. It is neither verbal nor written, nor visual communication.
To me, it is a desecration of the flag, destruction of the intellectual property we, the people of the United States, hold dear, and a hate crime against the people of the United States.
I am not and have never seriously aspired to be a lawyer, much less a constitutional lawyer.
My Substack is called Common Sense, which I consider to be the zenith of wisdom, and often at odds with the intellectual contortions of law. My common sense tells me that the vast majority, probably 80% of Americans, agree with you and I that burning the flag as an act of protest is an outrage, an insult, and a moral obscenity to every patriotic American and especially those who have devoted the best years of their lives, and in all too many cases made the ultimate sacrifice, or perhaps even worse, spent the rest of their lives as wounded warriors.
I do not believe that the sophistry of nine individuals ought to condemn the rest of us to tolerate the intolerable.
I am hopeful that President Trump’s EO on the issue (which I frankly don't think goes far enough with a mere one-year penalty) will trigger judicial reconsideration and subsequently congressional action to right this wrong.
As a writer, I cannot think of anything that can be more articulately expressed through words —either written or spoken, images, or some combination thereof, than by igniting our flag. It is not my intent to infringe on our constitutional right to freedom of speech. It is, as you so eloquently articulate, perhaps the first and foremost virtue that makes America a country worth fighting for, which becomes more apparent every day as we watch Europe intolerably constrict speech to the point of inciting rebellion.
However, freedom of speech does not require us to tolerate the impudence and disrespect expressed by miscreants and malcontents who spit in our faces by burning our flag.
If they cannot find another way to express their discontent, no matter how repugnant, all parties involved would be better served by their removal from the rolls of citizenship and their presence in our country.
My remedy is consistent with the ancient Roman practice of exile.
Perhaps absence will make their hearts grow fonder toward the country they once so contemptuously scorned. Perhaps they should be allowed an opportunity to do penance.
But absent such remorse, such individuals should forfeit the rights, benefits, and privileges of citizenship in the greatest country in the history of the world.
George, I appreciate people who truly do appreciate the service and sacrifices of our servicemembers. If you truly do want to thank us for our service, then please care about the reason we served.
The oath of every executive branch employee below the president is in federal law (5 U.S.C. 3331). We all promised that in all official conduct we would "support and defend" our "Constitution" against "all enemies, foreign and domestic" and "bear true faith and allegiance to" our Constitution. The oath of the president is in our Constitution. He promised that in all official conduct he would "preserve, protect and defend" our "Constitution" to "the best of" his "Ability." None of us swore to do anything at all for a mere flag or a mere person or a mere party.
Another thing about our oaths that is well worth keeping in mind is something I saw with my own eyes. Some of the people who were the most faithful to their oaths were not citizens. Many who serve (or who historically served) in our Armed Forces hope or hoped to become citizens. They actually did much more than many Americans to earn the rights too many of us take for granted.
In my own very humble way I too am trying to defend our Constitution.
George, it makes no sense to draw a categorical distinction between speech and conduct. Speech necessarily is conduct. Words without action simply aren't speech. They're mere thoughts.
It's an egregious mistake to take the words of the First Amendment literally. That is an obvious mistake, but it is made by many who purport to teach us the meaning of the words of the First Amendment. The words "freedom of speech" and "freedom of the press" or "liberty of the press" were and are mere symbols. They were and are slogans that stood for much more than mere speech or the mere use of the printing press.
The entire First Amendment is devoted to securing our freedom of thought, expression, communication, association and assembly especially for the purpose of securing our self-government and our liberty. Even religion is nothing more or less than the exercise of the foregoing.
I don't like flag burning, but I like far less the idea of trashing our Constitution merely to protect our flag. The flag is a mere symbol. "Regarding that issue, please consider "Now Might Be a Good Time to Forget the Flag and Remember the Republic." https://blackcollarcrime.substack.com/p/now-might-be-the-time-to-forget-the?r=30ufvh
The crux of the constitutional debate over the past 50 years or so has been between literalists and interpretivists who would find “hidden meanings” that the founders show no historical evidence of ever imagining in their wildest dreams.
Strict literalist fundamentalism is the dominant view of today’s SCOTUS. That's why I hope Trump’s EO prompts reconsideration of the current precedent.
Straying from the text renders it meaningless, enabling the discovery of rights such as privacy in imaginary “penumbras” and such. Jurisprudence is not astrology or theology. It is judging cases based on what the law says, not what progressives wish it said, or think it implies, or says between the lines, or in some hidden dimensions, legal analogs to string theory
In this case, speech means speech-verbal, written, or even visual portrayal. Setting the flag ablaze does not fall within any logical, rational definition of the term.
While we have our respective opinions, the ones that matter will begin to be rendered in the first week of October.
I admire your confidence and certitude in your view, therefore I am similarly confident that you will share my conviction that the Court should be given the opportunity to reaffirm its support for it. So I'm sure you’re grateful to the President for giving them the opportunity.
George, if you truly believe that enumerated rights don't protect "imaginary penumbras," then please explain what you think "religion" means.
If you truly believe that "Straying from the text renders it meaningless," then please identify the scope and significance of "the right of the people to keep and bear Arms."
I don’t think your question requires an answer from me. The literature exhaustively covers these issues. I have no burning issue with either area of law.
George, it's simple. It's common sense. Don't rely on labels and jargon and doctrine. I'm a simple soldier. So simply prove that something I wrote was wrong. The "freedom of speech" never was understood or meant by the Framers to be limited to the mere verbal or written expression of literal words. Try to prove that it did mean what you say, and I'll prove you're wrong. For thousands of years, flames and flags have been considered essential to expression.
I only sought to seek that it prove that it means what they said, and I believe I’ve done so.
Perhaps in the next life we’ll be able to ask them, but until that time I’m happy to rely on the current SCOTUS. Are you?
I think I can make you reconsider.
If I punch you in the face, is that protected speech?
Why do you think that would make me reconsider? It would only make me hurt you. Now, you're talking about the Second Amendment, not the First Amendment. As SCOTUS emphasized in District of Columbia v. Heller, the Second Amendment really isn't about mere arms. It's about the fundamental right of self-preservation. If you attack me, I have the right to protect myself by hurting you. It's common sense--and it's a right secured by our Constitution.
George, Trump's order is wildly unconstitutional for multiple reasons. In part, you're missing a huge blind spot. It is not the place of our public servants to dictate to us what to think or say (or not think or not say) about public people and public issues.
The crucial truth that is being obscured and overlooked is that our First Amendment rights and freedoms flow from our sovereignty, not from the First Amendment. The First Amendment is, essentially, a mere reflection of the sovereignty of the people. Don't take my word for this, take the words of SCOTUS and many opinions of many SCOTUS justices.
Six years after Texas v. Johnson, SCOTUS emphasized “the critical postulate” of our Constitution is “that sovereignty is vested in the people.” United States Term Limits v. Thornton, 514 U.S. 779 (1995). This principle always should be the starting point of all analysis of our First Amendment rights and freedoms regarding speech on public issues. Take the highly relevant example set by SCOTUS in Citizens United v. FEC, 558 U.S. 310 (2010):
Under our Constitution it is We The People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important—vitally important—that . . . no point of view be [even] restrained [much less] barred.
Speech [which clearly and necessarily includes voting] is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. In [our] republic where the people are sovereign, the ability of the citizenry to make [our own] choices among candidates for office is essential. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office. Discussion of public issues and debate on the qualifications ofcandidates are integral to the operation of the system of government established by our Constitution.
For these reasons, political speech [including voting] must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech [including voting] are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.
We always should bear in mind the crucial truths expressed by a unanimous SCOTUS in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (often quoting James Madison (often called the Father of the Constitution and the Father of the Bill of Rights)).
Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.”
One reason for “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” to be “the only effectual guardian of every” American “right.” But our freedom of thought, speech, press and assembly truly flow from our sovereignty. So in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
Clearly, public servants cannot “give public servants an unjustified preference over the public they serve” by giving any public servant more “immunity” than the people, themselves, “granted” their public servants. But the crucial truth is that people’s immunity flows directly from the people’s sovereignty.
I refer you to my latest Substack on the subject.
Not necessarily to be cavalier, but the tl; Dr version is that SCOTUS is full of shit on this issue.
I remind you that this has happened before, for example, the Dred Scott decision.
These are human beings, not deities. We have a much different Court now. I hope we have a chance to hear what they think.
You may be pleased to know that even I don't think they will be nearly as draconian as I would like.
But you should know two things:
First, burning the flag was once so unimaginable that the first known instance did not occur until after almost 200 years of American history.
Second, over 70% of Americans say that burning the flag is never an acceptable form of protest.
We do not have to tolerate this. The Constitution, rightly interpreted, does not require us to do so. We should respond to President Trump’s leadership by banning it from the legal scope of citizenship and banishing those who violate its proscription.
George, I understand your outrage and the outrage of those who viscerally oppose anyone burning our flag. That was my reaction, too, years ago.
I also agree with your skepticism about so-called SCOTUS justices. They are only people, and sometimes they obviously decide issues the way they merely want to decide. Too often, they knowingly violate our Constitution. Almost always regarding our First Amendment rights and freedoms, the writing of SCOTUS justices is pretty pathetic. It often actually says nothing about the text or structure of our Constitution.
Instead of the anemic writing of SCOTUS justices, consider two pieces that robustly address the real issue. The real issue is that all public officials are our mere public servants. In general, it is not their place--our Constitution does not permit them--to dictate to us the content of our expression or communication.
"Why Is the First Amendment First? Locke Is the Key." https://open.substack.com/pub/blackcollarcrime/p/why-is-the-first-amendment-first?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false
"The First Amendment Is First for Fighting for Our Liberty (and Sovereignty)"
https://blackcollarcrime.substack.com/p/the-first-amendment-is-first-for?r=30ufvh
I agree with all of that. I consider myself to be a 1st Amendment maximalist, as emotionally gut wrenching as it can be, with one notable exception with which you are by now all too familiar. 😏
It’s always wild to me that Lukianoff cries about safetyism but also thinks that if a pro Palestinian student doesn’t cater to the feelings of Zionist students that means the pro Palestinian student is a violent terrorist
“… prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority”
This is what it states. This entire article is an embarrassment and obfuscation. Sadly not below the standard of FIRE
Arson is not speech. Any commentary that people wish to make about the US may be done with actual words, whether spoken or in print. Time, place, and MANNER applies. Arson is inherently violent destruction and applying it to the representation of a person or people communicates exactly one thing: A lethal threat against the represented persons. Burning the American Flag as a "communicative act" should be legally treated as making terrorist threats because that's exactly what it is.