Wednesday, June 28, 2006

On Burning Flags and Chicken Livers

By only one vote, our government's most recent attempt to curtail purely political speech has failed. (North Star Politics duly notes how scary this one-vote margin truly is.) The tenor of the debate and its overt political opportunism has been, to say the least, distressing.

I'm surely wasting my time, but I want to address a particularly mendacious argument, which compares bans on flag-burning to laws against cross-burning and which has been making the rounds (again and again) and has been offered even by allegedly liberal senators from solidly blue states who claim to have law degrees.

Over at the blog of the National Review (new and improved in its post-segregationist form--although not really, it turns out), Jonah Goldberg reprints such a comment, from one of his more intelligible fans, without so much as a fact-checking grunt:
if politicos can figure out how to outlaw burning crosses w/o running afoul of the 1st amendment then surely they can figure it out in regards to the flag. just copy cross burning laws and change "cross" to "flag". how hard was that?
Well, like using the cap key on your keyboard, such a maneuver is not hard at all. But it's not accurate or pertinent, either.

You wouldn't guess it from the way it's often described by certain white supremacists, but the relevant Supreme Court decision (Virginia vs. Black, 2003) clearly permits laws against cross-burning only if they forbid acts that involve destruction of property (i.e., vandalism) or a clear intent to intimidate. (Note to the crazier elements of the right wing: the pivotal word here is intimidate, not offend. You are still free, obviously, to offend, and you do it quite well, thank you very much.)

To help put it terms that Goldberg and his lower-case minions can understand, I will quote from the relevant article. (You can read the case law here.)

First, the Supreme Court specifically held that:
under some circumstances, cross burning could be a form of expression protected by the First Amendment. So, by a separate vote, the Court struck down a part of the Virginia law at issue that said jurors could presume that anyone who burns a cross intended to intimidate. [emphasis added for the lexiconically impaired]
Virginia vs. Black might seem like a complicated decision because there were two separate alleged misdemeanors under consideration, which, perhaps, is one too many things for some armchair patriots to keep track of:
Black was arrested under the Virginia law in 1998 after burning a cross on an open field in connection with a Ku Klux Klan rally. Elliott and O'Mara, by contrast, were arrested in a separate incident in which they burned a cross on the lawn of Elliott's African-American neighbor.
But, writing the majority decision, O'Connor noted the distinction between these two acts. The Court actually struck down part of the law--the part that implied "jurors could presume that anyone who burns a cross intended to intimidate."
Justice O'Connor found the law objectionable mainly in the case of Black, the Klan leader. Applying the law's presumption to him, O'Connor suggested, deprived him of the ability to make a defense that he was "engaged in core political speech." O'Connor continued, "The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut."
In other words: As a form of political speech, cross-burning was upheld.

Indeed, a recent law passed in New York State, considered the most restrictive in the country, still contains several caveats in an attempt to meet these dual tests against vandalism and/or intimidation:
Etching, painting, drawing or placing a swastika on public or private property without the owner's permission, along with cross burning, will now be considered felonies punishable by up to four years in prison. [emphasis added]
Even parts of this law are being challenged as too restrictive or severe by those pesky liberals (yes, far-right racists, we've got your back).

Nevertheless, here is the net effect in as plain language as I can possibly muster: While you are still free to, say, carry a flag with a swatiska at a political rally or paint one on the wall of your tool shed, if you want to perform this act on the front lawn belonging to your black neighbors, you have to ask their permission first.

For those conservatives who waste their days sighing under the very mistaken impression that they can no longer burn a cross, I refer you to my earlier post on this very subject. It's an art form that is alive and well.

As for the moral equivalence of the act of flag burning, what group of people can it be said to intimidate? (Other than, perhaps, cowardly chickenhawks, who, I'll grant, suffer recurring jaundice caused by their genetically lily livers.)