Ultron

Well, unless there really is a fire. I suppose in my analogy someone can yell 'fire' because of the burning flag.

Understood. I'm just talking about Constitutionally-protected rights. I'm not saying people aren't free to do other things that aren't limited by the law.

Understood. If you don't like that analogy, how a different analogy where someone uses just a picture of a burning flag instead? Let's say a student there proudly displays that image. Does the teacher have the right to infringe on him displaying that image at all?

Please understand that in my first analogy I'm saying there is no risk of anyone getting hurt because it's a controlled fire, and furthermore nobody is intended to be hurt (ie, this is not a threat) nor is anyone actually physically hurt by this event.

OK so you are basically saying that if the symbolic expression constitutes a danger, even if it's not intentional, that it can be infringed, right?

Roger that.

Agreed.

Ut

There is no way to know in advance whether burning a flag in a cafeteria will injure someone, set something else on fire, etc. That's why fire codes would ban it. They can't just assume that there is no risk since reality isn't bounded by a scenario.

That's the same reason why you can't fire your pistol down Main Street. Even if nobody gets hurt by the bullet, the police officer isn't going to be impressed.

In this case, it's the right to not burn with your cafeteria (life) and the right to not have your cafeteria set on fire that trumps the right to free speech. It's just a constitutional right trumped by another constitutional right.

Again, fire codes work from the assumption that behavior that puts these right (to property and life) in significant jeopardy should be regulated against even if in some scenarios nothing bad happens.

Ut

You're mixing things up. The issue is not whether the teacher has a right to infringe on him (say by kicking him out of class), the issue is whether the government has a right to infringe on him (by fining him, jailing him, etc.)

Of course, if this is not a private school but a public school, the teacher is then acting on behalf of the government and should let the student alone.

As said in my previous post, it doesn't matter whether you actually intend to or whether you actually hurt someone. Fire codes forbid dangerous behavior regardless of intent or outcome.

Now, whether or not a fire can be considered a "controlled fire" would depend on the specifics of how the fire is set up. I'm sure many people have had what they considered a controlled fire become suddenly uncontrolled. It's better to leave to the fire codes to decide what is and what is not a controlled fire.

Of course, the right to free speech does not trump the right to life or the right to physical integrity for example.

But if you look at your example, the fire code would not only ban the burning of the flag, but it would also ban the burning of any piece of cloth. That's the point. In this case, any judge would see that the fire code does not seek to restrict the freedom of speech, but seeks to protect the security of the public. If the fire code specifically banned the burning of the flag, it would be obvious that it seeked to infringe on freedom of speech.

P.S. I'm going to bed...

Grad Student Humanist

Trying to distort the right of free expression provided by the 1st Amendment into just a protection of political speech, or even worse, just actual verbal communication, is a typical strategy of the right-wing in this country. It would then be easy for them to ban their whole laundry list of "objectionables": pornography, TV shows/movies/literature they don't agree with, "offensive" art, burning the flag, etc.

Ultron

I disagree, and have given my reasons already. (I can restate again if needed)

But those rights that aren't enumerated aren't literally protected by the US Constitution. Do I have a right to wear blue shoes? That's not listed in the Constitution. Should I claim that is a right that even the Constitution cannot take away just because it isn't enumerated?

9th:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Check it out. Blue shoes not covered.

Therefore the Federal or state legislative bodies cannot pass laws which deny me the "right to wear blue shoes" or any other right I claim to have?

Not at all. Just keep in mind the state can pass laws, too. And those rights not infringed by the federal and state govts are reserved for the people.

10th:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

What rights specifically are recognized by the Constitution that aren't listed in it? That's a contradiction. The rights of the people aren't just protected by the federal govt. They can be protected by state law. Failing that, there are no literal protections either by the state or federal govt for any rights the people have. They enjoy those freedoms without protection.

[QUOTE]Originally posted by Melkor
[B]No, but it is very clearly intended to communicate something, and as such it is definitely "speech". There is no question of that.

It literally is not speech, though. Burning a car is literally not speech. Burning a towel is not speech. If the letter of the law is not that important, how is any law realistically enforced?

I'll certainly agree that burning a flag can be a form of expression to some people, but that's not literally protected by the US Constitution.

I disagree with those rulings. I also disagree with other rulings the Supreme Court has made over time. And I bet you would probably disagree with some of their rulings too that have taken place over the last 200 years. I have yet to meet one person that agrees with every Supreme Court ruling made. And keep in mind the courts have changed their rulings over time. So someone who agreed with the law in one way, probably got their feelings hurt when the pendelum swung the other way and the court changed it's mind.

Furthermore debate would be stale if we all agree to the same thing.

Ultron

Oops I didn't know you had already quoted the same two Amendments I brought up. If so I wouldn't have quoted them so much hehe.

Agreed. What I am saying however is that those rights are NOT Constitutionally protected. They are not protected by the Federal govt. Those rights are left to the people and can also be protected at the state level. But in line with both the 9th and 10th Amendments, if the both the federal and state govts don't protect or infringe on those rights, the people continue to have those freedoms.

By what you just said above, the federal govt isn't actually enabled to protect rights that aren't enumerated. Just not disparage or deny those rights left to the people (who can then in turn have their states protect those rights). They don't have that power.

How can the govt have power beyond the limits listed? How do you know what the limits of federal power are if you don't spell them out?

Not even the 9th or 10th Amendment proclaims to give the Federal govt power to protect things not listed by it, only that those rights (or powers) are left to the people or the states.

Actually if you check my arguement out you'll find it falls right in line with this statement. That the govt only has power on what it lists, not power over things it does not cover. What we actually disagree about is whether or not something that literally isn't speech, is protected as speech. Not on the limit of govt.

Ultron

I argue it's not a federally-protected Constitutional right. Not that you aren't free to do it. There is a big difference.

Actually if an Amendment were passed, we could actually repeal the freedom of speech, the freedom of press, the freedom of religion.

And yes I argue that the law should be taken literally. So actions not literally protected by the Constitution can be legally infringed on. Just keep in mind actions that ARE literally protected by the Constitution can ALSO legally be infringed on, but only through the Amendment process.

I try.

Zar

Amen!

Melkor

Ultron, I take it then that you're one of those folks that doesn't have any problems with the Federal Government funding religious activities, since it isn't literally violating the "Congress shall make no law respecting an establishment of religion" bit? Likewise with other mixings of religion & gov't, as long as they don't violate the letter of the establishment clause?

Ultron

Why bother amending the Constitution? In order to make it a federally-protected right. I am not saying Amend the Constitution to ban flag burning. You can still do that though. Remember we banned drinking with the 18th Amendment, even though that was NOT a federally-protected Constitutional right.

So even though I argue that flag-burning is not a federally-protected Constitutional right, that's not to say that an Amendment can't ban it.

Remember all Amendments don't just protect rights, they can also restrict freedoms. They add or subtract federal power through the process outlined in the Constitution.

I'm just arguing that we don't have a Constitutionally-protected right to burn anything for any reason. Not that we don't have the freedom to. It's just possible to pass an Amendment making flag-burning a Constitutionally-protected right, or to ban it.

My premise: flag-burning is not literally speech, therefore it's not literally protected by the Constitution.