An outline approach that I developed for a live debate.
“It is treason.”
United States of America’s Constitution: Article III, Section 3
“Treason against the US shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Limits Congress’ ability to define treason.
“Not all Speech is free”
Laws against libel, threats, and yelling “fire” in a crowded theater
They cause real, demonstrable damage to another person.
Libeling someone can present a threat to their livelihood.
Inciting a riot causes physical harm to people and property.
Burning a flag does not harm anyone.
Brandenburg v. Ohio 1969
Brandenburg
Prominent leader in Hamilton County, Ohio KKK group. Planning a march. Asked a reporter from Cincinnati to cover one of the KKK rallies
Possible threats on Jews, blacks, and anyone protecting them
This was all leaked…
Syndicalism: “One cannot advocate crime, sabotage, violence, or unlawful method of terrorism or political reform.” // advocating violence
as well as teaching these doctrines to a group
Trial
Hamilton County court found him guilty of violating the Ohio criminal syndicalism statute of 1919
Statute outlawed speech which advocated “the duty, necessity, or propriety of crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”
Also charged for voluntarily assembling with a society or group to teach or advocate the doctrines of criminal syndicalism.
Went to Ohio 1st District Court of Appeals, affirmed the decision
Supreme Court of Ohio dismissed with no opinion.
But USSC granted the writ of cert.
Supreme Court unanimously reversed 8 For - 0 Against
Syndicalism statute was overly broad and therefore unconstitutional.
Violated the 1st Amendment, as applied to the state through the 14th, b/c it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action.
Decision: Government cannot punish abstract advocacy of force or law violation
Brandenburg test
If you are inciting others:
Intent to take action
Imminence, whether it will happen or not
Likelihood of the action actually occurring
“Clear and present danger” test is still an exception to the First Amendment guarantee of free speech.
The Court held that speech advocating unlawful activity is protected unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Never been understood to constitute a category of proscribable (capable of being prohibited) speech like libel, obscenity, and fighting words.
Court always has applied the doctrine to a proscription (banning) on conduct, not speech.
Very few cases have actually reached the court during the past decades that would test the outer limits of Brandenburg, so the test remains largely unqualified.
Donald Trump’s tweet
"Nobody should be allowed to burn the American flag -- if they do, there must be consequences -- perhaps loss of citizenship or year in jail!"
Constitution provides citizenship in different ways. One: to all people born in the US, and this is done automatically. Two: to those who wish to become "naturalized" citizens if they were not born here. (Dual-citizens due to a parent's origin of birth can fall under the second.)
The law is different for the two types of citizenship. For citizens by birth and naturalization, there is a law that provides for the removal of citizenship for "voluntarily performing" certain actions "with the intention of relinquishing United States nationality." Those actions include a formal request to relinquish citizenship, serving in a foreign military that is hostile to the US, and being convicted of treason.
For a naturalized citizen, the order granting citizenship CAN be revoked, but the law provides for it ONLY if the citizenship was "illegally procured" or obtained through misrepresentation.
Now, these laws can be changed, but only due to an act of Congress. Those laws would still need to survive a court challenge to their constitutionality if flag burning were included.
The Supreme Court held in Vance v. Terrazas and, earlier, in Afroyim v. Rusk, that for the law to penalize certain actions with loss of citizenship, those actions must be done voluntarily and with the intent to give up citizenship.
President-elect Donald Trump might not be a fan of burning the American flag, but neither he nor Congress can criminalize it, the Supreme Court has ruled twice. (They themselves cannot)
Two First Amendment cases
Texas v. Johnson in 1989
The former case stemmed from a flag burning protest at the 1984 Republican National Convention and a Texas law banning desecration of a venerated object, if such action were likely to incite anger in others.
He was convicted, appealed and USSC agreed to hear it.
Ruling of 5-4, Justice Willian Brennan agreed that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment.
AKA: Your outrange alone is not justification for suppressing free speech. or symbolic speech
Dissent: Justice Stevens argued that the flag’s unique status as a symbol of national unity outweighed “symbolic speech” concerns.
US v. Eichman in 1990.
In 1989, Congress passed the Flag Protection Act which made it a crime to destroy an American flag or any likeness of an American flag which may be “commonly displayed.” (This did not include disposal of a worn or soiled flag.)
Eichman set a flag ablaze the steps of the U.S. Capitol while protesting the gov’s domestic and foreign policy.
Q of the case: Did the Act violate freedom of expression protected by the First Amendment?
Also in a 5-4 decision, the USSC struck down the law b/c “its asserted interest is related to the suppression of free expression and concerned with the content of such expression.”
Allowing the flag to be burned in a disposal ceremony but prohibiting protestors from setting it ablaze at a political protest made that clear. (Which Justice Brennan argued in one of his final opinions.)
The future:
In 2005, Utah Senator Bob Bennett sponsored, with Co-sponsor New York Senator Hillary Clinton, drafted the Flag Protection Act of 2005.
The nonpartisan Congressional Research Service summarized the act as follows:
Amends the federal criminal code to revise provisions regarding desecration of the flag to prohibit: (1) destroying or damaging a U.S. flag with the primary purpose and intent to incite or produce imminent violence or a breach of the peace; (2) intentionally threatening or intimidating any person, or group of persons, by burning a U.S. flag; or (3) stealing or knowingly converting the use of a U.S. flag belonging to the United States, or belonging to another person on U.S. lands, and intentionally destroying or damaging that flag.
overall:
The bill’s purpose was to be taken back to the USSC which was much more conservative at the time than it had been in 1989, with hopes to overturn the previous decision.
The law was not passed or even considered by Congress and therefore its constitutionality was never challenged in the Supreme Court.
[Compiled by me in December 2016]
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