Posted by Dave
From the Text Machine yesterday:
Empire Dan: I think we have been looking at this flag burning problem in the wrong light. They say it is freedom of speech. But if I went down to the Castro District in San Francisco and I lit a pride flag on fire I would be charged with a hate crime. Why is not burning the American flag a hate crime. The people that are burning the flag hate what it stands for therefore it is a hate crime. Just as you could argue that by burning a pride flag you are setting out a specific people or type of people comma that is exactly what the American people as a whole are. We are a specific subset of people. Therefore burning the American flag is a hate crime. Okay now change my mind educate me more. And I do love and respect you for the way you do educate us. 4:38 PM
This is, of course, fallout from the President-Elect’s idiotic and wrong tweet yesterday about how he wants to punish those who burn the United States Flag. Let me be clear about this, Trump could not possibly be more wrong about this in at least two ways.
First, the Supreme Court – led in this case by no less than Antonin Scalia himself, found that burning the flag is protected speech. That 5-4 ruling in 1990 would, I suspect, be 8-0 today.
I don’t like the fact that some people decide to exercise their freedoms by burning something that matters so dearly to me. At the same time, when I consider why it matters to me, it’s because it symbolizes the protection of that right and its exercise. I would never do it, but I would also never get a gay marriage or have an abortion.
Secondly, less understood is the idea that American Citizenship can NEVER be taken away involuntarily. There is an exception, of course, if someone lies or defrauds the nation to gain that citizenship, but otherwise, once one has it, by birth or by naturalization, it cannot be taken away. It can be given back by choice, but never taken by the government. Over the course of several Court rulings (most notably Aforyim v Rusk, 1967), followed by changes in the law passed by Congress, it is now understood that US Citizenship can never be taken away by the government. For any reason.
In about fifty-one days, Donald Trump will – for the first time in his life – take an oath to uphold and defend the Constitution of the United States. He is not off to a good start on the matter and this has always been my concern with him. His apparent willingness to use the power of government to silence his critics or those who disagree with him scares the living daylights out of me. Frankly it is every bit as bad as a leftist wet dream when it comes to control of the press and speech.
You can argue that the tweet was “his opinion,” and he certainly is entitled to have his. But how far is he willing to go, as the President sworn to uphold the Constitution, to inflict his vision of what America should be on those who disagree with him, which in this case, includes me?
Now on to the idea of making burning the US Flag a “hate crime.”
First off, the idea of so-called “hate crimes” is nebulous and should be every bit as unnerving as Trumps tweet. How can one possibly know what is in another persons heart. I get the fact that some people leave their beliefs and thoughts open for everyone to see. When they commit a crime, is it not enough that they committed the crime? Why do we need to worry about their thoughts and feelings, which, after all, should be protected speech, right?
Is the crime itself not egregious enough to warrant whatever punishment we have decided via law? How is it reasonable to say that a crime deserves “more” punishment because of what we think that the offender thought?
In any case, since what the person thought should be protected in the first place, how can you make burning or otherwise desecrating an American flag a “hate crime?”
People have the right to believe whatever they choose to believe. It doesn’t make them right or wrong. But it does make those who want to use the power and force of government to make them think or believe a certain way progressives. And I thought that we on the political right despise progressivism? Or is that only when it’s the other sides beliefs and thoughts? Ours are just fine?
As for comparing the act to the burning of the gay pride flag, you’re into a sticky wicket. In at least one case in Nebraska, a drunken man was convicted of a “hate crime” after burning a gay pride flag that he had taken (stolen) from a neighbors yard. I noted two things, first it was a Bench trial, not a jury trial and after the conviction the lesbian couple whose flag had been burned had this interesting thing to say about it:
“Had the man who burned our gay pride flag burned our Husker flag, we would have still called the police — but we wouldn’t have felt as threatened,” they said. “We wouldn’t have wondered ‘what’s next?’ What became so clear to us after Saturday night, is that the intent really does make a difference. Seeing him waving that burning symbol of a controversial, and inherent part of our being(s) as a minority, in front of our house as a clear message, made it scary. It made it an attack as opposed to a prank.” (Omaha.com April 28, 2016)
For myself, I do not believe that it was proven beyond a reasonable doubt that this was “an attack” on anything other than a piece of fabric, but I wasn’t the Judge. What would happen if this were to be appealed up the chain, I cannot say or even begin to guess. But for the moment, the law, as interpreted by at least one Judge, says that it is (or at least can be) a “hate crime.” This is, in my view, progressivism. Using the power of government to force individuals to think and act in an approved way to “solve” a perceived social issue. So for the moment, unless and until wiser consideration is given, burning a gay pride flag can be a hate crime but burning a “husker flag” flag is not.
That, despite that fact, that a significant portion of the nation, including myself, hates the Nebraska Cornhuskers. Would I burn their flag? Probably not unless I were drunk…
I personally believe that burning neither is a “hate crime.” In the case of the gay pride flag because you can never prove beyond a doubt what is in a persons mind AND because even if I “hate” any given race, religion, sex, creed or protected class or country, I have a 1st Amendment right to do so. I do not have a right to destroy life, liberty or property. Those things are crimes. Hate is not becoming, not wise and not recommended, but it is not a crime.
Burning the American Flag is protected free speech. If it isn’t, then what the flag symbolizes doesn’t exist.
The US Flag does not represent any subset of anything, it represents the ideal of liberty. If we choose to use the power of government to force “respect” or belief or behavior that the government has deemed “correct,” what have really become?
If we go down that path, you might as well burn it, because it no longer stands for anything that resembles liberty.
About DaveTalk Show host, lifelong Baseball and Star Trek fan, US Navy Submariner and Fire Control Technician (Ballistic Missile) 1st Class Petty Officer (Submarine Qualified), Dave is married with four daughters, one son, two sons-in-law and two grandchildren plus one on the way. He resides quietly in Manteca, CA, where he records his podcast, Plausibly Live, three days a week. He also writes for several other blogs and as a "Stay at home Dad" plays a lot of games with his son. Dave loves books, history and is learning to weld and drive a forklift. Just for fun. Dave is also a Life Member of the Disabled American Veterans and a Member of the US Submarine Veterans.
Posted on November 30, 2016, in 1st Amendment, Constitution, LBGT Issues, President Donald Trump, Social Issues, Supreme Court, US Flag and tagged 1st Amendment, Citizenship, Donald Trump, Flag Burning, Freedom of speech, Gay Pride Flag, Supreme Court. Bookmark the permalink. 1 Comment.