Friday, June 23, 2006

The Third Man

You, the reader, are a police officer in the not-too-distant future.

During your shift you see three men are standing around a fire barrel in an alley. You get out of your cruiser and walk over to them. When you look in the barrel, you see that an American flag is on fire. Since the new Constitutional amendment forbidding the desecration of the American flag passed, and the new law based on that amendment took effect yesterday, you are obliged to question the men.

The first man says, “This is my flag. I just bought a new one for the front of my building. I am retiring this one because it became tattered with age. From my Navy training I know that when one disposes of an old flag it should not just be thrown away like trash. It should be burned.”

The second man is waving his arms and chanting anti-American slogans. He is praising America’s enemies in past wars. He mocking everything American by bellowing, “Long live Fidel Castro, long live Osama bin Laden!”

The third man says nothing. He smiles standing close to the barrel, warming his hands.

So how many men should you arrest?

The first man is right about the proper procedure to retire a flag. So he’s off the hook. The second man is obviously breaking the new law that forbids the desecration of the flag because of his behavior; so he's busted. But what about the third man?

He is present while an American flag is being both retired and mocked. As long as he says nothing, how do you determine his intent? Do you ask him which man’s fire is warming his hands? If flag-burning is conduct, rather than speech, as some say, what does the third man’s conduct say?

My point here is that enforcement of such laws will be always be a problem because the intention of the flag-burner, not the act itself, constitutes the difference between honoring or desecrating the flag.

Meanwhile, below are excerpts from and links to a couple of short pieces which decry the absurdity of the Republican-led Congress wasting its time with this poseur’s issue, while it ducks facing up to dealing with real problems. By the way, Sen. Hillary Clinton has come out as siding with those poseurs for the amendment.

Washington Post:
“...The amendment would soil the First Amendment's command that Congress shall ‘make no law ... abridging the freedom of speech.’ Flag burning is an odious form of expression. But there are lots of odious forms of expression the First Amendment protects: Holocaust denial and swastikas, racist rants and giant Confederate flags, hammers and sickles. The amendment’s power is in its self-confident sweep: Speech, including expressive acts, will not be censored. Government cannot punish ideas. Members of Congress who would protect the flag thus do it far greater damage than a few miscreants with matches.

The Register-Guard
“If anyone needs further proof - not that anyone does these days - that the Republican leadership in Congress is both desperate and clueless, it's the election-year revival of that mother of all non-issues: flag desecration. The U.S. House passed this tread-worn measure last year, and the Senate Judiciary Committee approved it last week. Even though Congress has no shortage of real issues, ranging from the war in Iraq to global warming, clamoring for its attention, the full Senate will begin debate next week on a proposed constitutional amendment to solve a problem that doesn’t exist.”


David said...

Excellent, excellent post.

The requirement to know another person's intent is the secondary idiocy of both this and the so-called "marriage" amendment (the first being that what they are designed to do is wrong in the first place).

With the VA amendment, the irony is that the more deliberately a gay couple expresses through contracts those values that make marriage important - fidelity, responsibility, commitment - the more likely it is that they will run afoul of the constitution. It is that very intentionality that will be used against them. A very, very strange way to govern.

Vivian J. Paige said...

"By the way, Sen. Hillary Clinton has come out as siding with those poseurs for the amendment."
And another reason why if she wins the nomination, the Republicans will win the White House.

F.T. Rea said...


As a presidential candidate, I see Hillary Clinton as a dead end. So far, I haven't seen anybody I like more than Mark Warner.

-- Terry

Andrew Hamm said...

Your point about legislating intention is well-taken. I would argue that a free society has no business whatsoever in judging people's thoughts or motivations, only their actions.

Of course, by the same logic, so-called "hate crime" legislation is a similar travesty. Murder is murder, whatever the motivation.

JPTERP said...

Great post F.T. Rea. And very good point Andrew. I hadn't looked at the hate crimes issue that way, but it's a good point.

And yes, Vivian, even the flag burning ammendment can't improve Hilary's image with right-leaning moderates (which I suspect is her motivation). It's an election year political stunt through and through.

The Richmond Democrat said...

Well Terry, arguably all three are innocent.

#1 is disposing of the flag properly.

#2 may be acting like a jerk, but he did not burn the flag himself, so no actus reus.

#3 also did not burn the flag, so no actus reus.

*No legal opinion implied, etc.

F.T. Rea said...


OK. I left this part out: No. 1 didn't have a match, so he asked No. 2 for one. Instead of handing No. 1 the matchbook, No. 2 had actually lit the flag, and he admits that to the cop. Furthermore, he's tossing lit matches into the barrel as he chants.