Originally posted in "Free Speech" forum on ACLU message boards.
Aw c'mon. Not this flag-burning shit again. As Saint Bill Hicks once said, it's not like there's exactly an epidemic of flag-burning going on out there....
"But on the day the constitution was written.... I am willing to bet that there wasn't a SINGLE 'American' that had thoughts of burning the American flag." Um sorry. Maybe I outta go back in time and burn one...."
OK. I'm sure you'll admit you don't have a time machine. And -- I'm also willing to
bet you don't have a thought-reading machine.
So, failing a verifiable Obi Wan Kenobi appearance of the Founding Fathers ...
ME: What was your intention, anyway?
FOUNDING FATHERS: Our original intent was to get the British off our ass so
we could make shitloads of money and kill the Indians...
... the only thing you can talk about when you're referring to the
Constitution & Bill of Rights is WHAT THE WORDS MEAN, and not what was,
hypothetically, in somebody's bewigged head way back when.
What the words mean in the first amendment is pretty damn simple. Off the top
of my head -- "Congress shall make no law restricting free speech." No law. None.
You say there's a legal basis for not restricting flag burning because:
"If you own your own flag.... you can do with it as you please. No one has the right to tell you what you can or can't do with your stuff." And, after setting up that strawman, you say: "But hey.... why speed limits? We own our own cars right?"
But the issue isn't "I have an absolute right to do what I want to with my
stuff" -- which everybody knows isn't the case (and which you were so easily
able to illustrate). The issue is: "I have an absolute right to free speech."
(Within the obvious limits of contract law, not telling Joe to put a
bullethole in Jane, yattayatta.)
You have the right to burn your flag, not because you own it, but because
that act is a form of speech.
Why people get so crazy over a piece of cloth is beyond me -- I can only
speculate (and more on that later).
Why do you think us comsymps get so crazy about the right-to-burn-the-flag?
I mean it's not like I've got some burning desire to go out for an Old Glory
Roast, tonight -- like some kinda Weather Underground Satanic reversal of the
Fourth of July where parades of freaks go marching up and down Main Street
chanting "Fuck America! Fuck America!" each with a flaming flag in their
hands. No. I have better things to do with my time.
If you make a No-Burnee-Flagee law, its legal foundation is the principle of IMAGE AS PROPERTY. This principle is older than the principle of free speech. It has survived, side-by-side, with the principle of free speech. The principles are inconsistent and contradictory. They're basically at war.
Allow me to expand.
Here's a few fun facts to know and tell:
Did you know?
That the Founding Fathers you worship applied the social contract principles of Locke and Hobbes to their newly formed constitution. These principles replaced a previous legal theory. Before the right to free speech was established, the prevailing legal notion was that image and reputation were forms of property. Dueling was justified according to the notion that an insult constituted real damages. That notions of libel and slander (and the penalties attached) were much stricter because of this legal theory. If you spoke ill of the nobility, the church or anyone with any power, you could be slammed in jail.
Did you know that vestiges of this legal theory survive in statute law (especially laws governing libel and slander?).
That W.C. Field's face is somebody's property?
That, via the miracle of necromarketing, Fred Astaire can sell vacuum cleaners?*
That recent Supreme Court decisions have kicked the press in the nads, particularly the Food Lion case.**
That Janet Malcolm didn't go to jail because, by a miracle, she found her interview notes?
That I could go to jail if I drew a cartoon of Mickey Mouse buggering Donald Duck?
That, without express permission and consent, it is not legal to publish of photograph of anything in DisneyWorld other than the SKY because they own the rights to the image of every building, every stone, every rock within?
That Hemingway's heirs are hassling the Key West politicos who've been running a Hemingway Festival that's just too damn grubby, besides which they're not making any money, which they damn well should, because they own his face; they own his image?
What unites all these disjointed cases is they're all expression of the impact of controlling the image on free speech. The argument raised in most of these cases is: I own the image to this actor, this dead guy, my store, my vacation resort -- therefore your editorial cartoon, your parody, whatever isn't just a form of free speech. It's a form of theft. It's a personal attack.
Let's say the government can say: "You can't burn the flag." What the government is really saying is: "We control this particular image. You don't have the right to modify, degrade or destroy it."
In the case of the flag, control of the image -- obviously -- means control of the idea behind the image. Flag=America. Burning flag=disrespect. Flags aren't toxic substances. The problem is the symbolism. Burning the flag is a symbolic act. It's an expression of an idea. If the no-flag-burning amendment passes, expressing that particular idea becomes illegal. It's a step backwards to the earlier legal theory.
Well, OK. Why not Jesus? America's one nation under God, right? And here we are -- and there's millions of God-fearing Arabs would like to put a bullet in Salman Rushdie's head because he insulted the prophet -- and nobody wants to do a damn thing about Serrano and his "Piss Christ." I mean, what is Jesus anyway, chopped liver?
But let's be broadminded. Let's pass a broad-minded "It's something sacred!" act banning desecration of Jesus, Moses, Joseph Smith, Buddha, Mohammed, not to mention assorted crosses, stars of David, om symbols, etc.
From here, it ain't much of a jump to politicos slamming cartoonists in jail because they didn't like the caricature.
*Through the miracle of CGI, Fred Astaire dances with a Dirt Devil in a commercial launched at the 1997 Superbowl. His heirs sold the right to the image.
**An ABC journalist with a hidden camera caught the grocery store selling bad meat in 1992. Federal Court found him guilty of fraud.