Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos

I have a question about flag burning.

I deserve this. I earned this. I've . . . done things. I am forsaken and abhorred by God.

Oh stop being so dramatic. I just want to ask why I should care.

What?

Look, I get that the Supreme Court ruled — twice — that flag burning is expression protected by the First Amendment. But we argue about controversial speech all the time, and politicians advocate for punishing protected speech all the time. Why should we care when Donald Trump oafs around about flag burning? Isn't it just noise?

Because the flag burning "controversy" goes directly to the structure and methodology of free speech analysis.

That sounds superficially profound without actually meaning anything.

Do you want to have this conversation or not?

Pffffft. Fine. What does flag burning have to do with free speech "structure" or "methodology"?

In free speech analysis, how you get to a conclusion often has much more long-lasting impact than the conclusion itself.

Our legal system runs on precedent. The significance of the precedent isn't "the Supreme Court said that flag burning is protected by the First Amendment." The significance of the precedent is "someone wants to punish this speech and we have to figure out whether or not it's protected by the First Amendment. Let's look at the logic and methods the Supreme Court used to resolve that question when flag burning was the issue, and then apply it here."

But the Supreme Court has decided lots of cases about the First Amendment. This is just one precedent, one example of a method of reaching a conclusion. What makes it particularly important?

The Supreme Court's flag burning cases are crucial — not because of how they analyze existing exceptions to the First Amendment, but because they address whether the government can create endless exceptions to the First Amendment.

Just like crush videos.

wat

Crush videos. You know, videos of women stomping on small helpless animals.

That's . . . that's a thing?

Of course it's a thing.

Ugh. What does that have to do with flag burning? Or the First Amendment?

Congress — having salved all of the nation's ills — passed a law banning crush videos. Because who wouldn't vote for someone who stands against hurting baby animals? The law made it a federal crime to create or sell depictions of animal cruelty in interstate commerce. In 2010, in United States v. Stevens,, the Supreme Court found that the statute violated the First Amendment.

That sounds pretty straightforward. Why is it significant?

It's significant because of the way the government defended the statute. The government's lead argument wasn't that crush videos were outside of First Amendment protection because they fell into an already-recognized exception, like defamation or obscenity or incitement. They argued that the Supreme Court should recognize a new categorical exception to First Amendment protection for animal cruelty, because animal cruelty is so awful. They also argued that courts can recognize new exceptions to the First Amendment by weighing the "value" of the targeted speech against the harm it threatens.

The Supreme Court — in an 8 to 1 decisionfirmly rejected those two arguments. First, the Court said, the historically recognized exceptions to First Amendment protection are well-established, and you can't just go around adding new ones:

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 127 (1991) ( Kennedy, J. , concurring in judgment)—including obscenity, Roth v. United States , 354 U. S. 476, 483 (1957) , defamation, Beauharnais v. Illinois , 343 U. S. 250, 254–255 (1952) , fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748, 771 (1976) , incitement, Brandenburg v. Ohio , 395 U. S. 444, 447–449 (1969) ( per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co. , 336 U. S. 490, 498 (1949) —are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire , 315 U. S. 568, 571–572 (1942) .

Second, the Court said, the government's proposed methodology — that the Court should identify new categorical exceptions by balancing, on a case-by-case basis, the value of speech against its harm — is antithetical to First Amendment analysis and dangerous:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment ’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison , 1 Cranch 137, 178 (1803).

So: in 2010, the Supreme Court overwhelmingly and clearly rejected the idea that legislatures and courts can create new exceptions to the First Amendment based on how strongly they hate speech or how awful it is.

Okay. But I don't see what that has to do with flag burning.

The argument that flag burning is outside First Amendment protection relies on the same argument that the government made in Stevens — that the Supreme Court can, and should, recognize a special new exception to the First Amendment because burning the flag is so uniquely awful and represents such "low-value" speech.

Can't you justify a flag-burning prohibition under already existing historical exceptions to the First Amendment? What about fighting words, or incitement to riot?

You could justify some prosecutions of flag-burning on that basis under existing neutral laws, but not laws generally banning flag burning.

"Fighting words" — to the extent the doctrine still exists, which is doubtful —

What, what? It is?

–you'll have to wait for the first episode of the Popehat free speech podcast for that.

Anyway, at most fighting words allows the government to punish words directed at a particular person amounting to a challenge to an immediate physical fight. So, for instance, Paul Robert Cohen's jacket saying "Fuck the Draft" couldn't be fighting words because nobody could reasonably understand it as a direct personal challenge to them to fight. And in most cases, burning a flag isn't a direct challenge to a particular person to fight, which is why the Supreme Court said that it couldn't be treated as fighting words.

Could it be fighting words, hypothetically?

Sure! Say my neighbor Bob is a veteran and I knock on his door and when he opens it I'm burning a flag with a sign that says "I SPIT ON YOU BOB." That could probably be punished under the fighting words doctrine as a direct immediate challenge to a specific person likely to cause an immediate fight — if there was an existing statute prohibiting such challenges. But flag-burning statutes aren't limited to one-on-one confrontations like that. They seek to ban all flag burning.

Okay. But what about incitement? Isn't burning a flag incitement?

Colloquially it might be. But legally, it's not incitement outside of the protection of the First Amendment. The First Amendment protects speech that may make people so angry that they resort to violence — and thank God it does, because otherwise you could control speech by reacting violently to it.

No, incitement is only outside of the protection of the First Amendment when the incitement is intended to cause, and likely to cause, imminent lawless action. Maybe some people burning the flag intend to start a riot, and maybe in some situations a riot is likely. But most flag-burning statutes aren't that narrow — they ban flag burning whether the burner intends to incite a crowd to violence or not. That's why the Supreme Court rejected "incitement" as a rationale for flag burning laws.

Could you punish flag burning as incitement to riot?

Sure, you probably could, if you could prove that the flag burner intended to cause, and was likely to cause, imminent lawless action. You could do so under an existing incitement or disturbing the peace statute.

In 2005 members of Congress — including then-Senator Clinton — proposed a rather narrow flag-burning law limited to situations where the burner intended to cause and was likely to cause imminent violence. That would have met the strict test defining "incitement." It still would likely not have been constitutional, because it singled out for punishment one specific type of expression likely to cause a riot, and therefore was based on content. But that's a different post.

Okay. But you're not a Supreme Court Justice. Reasonable minds can differ on these things. Four justices dissented in both of the flag-burning cases. Can't you admit you may be wrong?

I'm wrong all the time. But my fundamental point is about how and why those justices dissented in Texas v. Johnson (the 1989 case striking down Texas' flag-burning law) and United States v. Eichman (the 1990 case striking down Congresses we-are-outraged Flag Protection Act of 1989).

Those dissents don't seriously advance either the fighting words theory or the incitement theory. Rather, they argue that the flag is unique and deserves unique protection — a new First Amendment exception.

Take Chief Justice Rehnquist's dissent in Johnson. It opens with a stirring history of the flag and its historical significance and emotional impact, and distinguishes it from other symbols like this:

The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence, regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

Rehnquist does invoke the fighting words doctrine, but not to fit flag burning within it. Rather, he cites it for the proposition that courts can carve new exceptions out of the First Amendment based on a weighing of the value of the speech against its social harm — in other words, the exact argument the government made and the Court rejected in Stevens:

The Court could not, and did not, say that Chaplinsky's utterances were not expressive phrases — they clearly and succinctly conveyed an extremely low opinion of the addressee. The same may be said of Johnson's public burning of the flag in this case; it obviously did convey Johnson's bitter dislike of his country. But his act, like Chaplinsky's provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. As with "fighting words," so with flag burning, for purposes of the First Amendment: It is no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the public interest in avoiding a probable breach of the peace.

Justice Stevens' dissent in both Johnson and Eichman is similar: he argues that the government has a compelling interest in protecting the flag from desecration and that such prohibition is acceptable because it will apply no matter what the intended message of flag-burning is:

These cases therefore come down to a question of judgment. Does the admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas that he or she deems most effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value. The opinions in Texas v. Johnson demonstrate that reasonable judges may differ with respect to each of these judgments.

This is the balancing test put in different terms — it still relies on a judgment that (a) this speech is harmful and (b) the speech is of low value because you could say the same thing other ways that are less harmful.

So what's your point?

The flag-burning cases are important, like the crush videos case was important, because they draw a crucial line between having a few strictly limited exceptions to the First Amendment, on the one hand, and having as many exceptions as we feel like having, on the other hand. Flag burning isn't speech that's uniquely valuable or important to protect. What's important is that we protect the principled method by which we determine which speech is protected and which isn't.

The argument that flag burning should be outside the First Amendment can be applied with equal force to just about anything — "hate speech," "cyber-bulling," "revenge porn," "pro-ISIS speech," or whatever the flavor of the month is. If think the majority was wrong in the flag burning cases, here's what you're saying: "the Supreme Court makes bad judgments, and I want to give that Supreme Court the power to decide, on a case-by-case basis, whether the harm of speech outweighs its value. I don't want the courts to be limited to established, well-defined categories outside of First Amendment protection."

But that's ridiculous.

You're damn right it is.

It's about nothing less than the rule of law.

Okay. Hey, aren't you just being a dupe for Trump by reacting to one of his tweets, when he's probably just trolling?

I write about the First Amendment. It would be ridiculous to stop just because Donald Trump raises the issue of the day. Prudence requires us to put Trumpisms in perspective; it shouldn't prevent us from continuing to articulate our core values and talk about the things that are important to us.

Last 5 posts by Ken White

Comments

  1. Argentina Orange says

    @Ken,

    Hey Ken,

    You have a propensity for internet kerfufflen. Any thoughts on the CEO of Reddit editing people's posts, and what that means re: CDA section 230?

  2. Lagaya1 says

    Isn't burning the proper way to dispose of an old flag? I've heard of the boy scouts doing this in some type of ceremony. I guess it's all about the magic words you say over it that makes all the difference.

    Flag burning doesn't rile me up at all. Banning flag burning certainly does.

  3. says

    So, by their own rationale, since Daddy Trump's lies have such "slight social value," Congress can pass a law making his utterances criminal! Yay!

  4. DRJlaw says

    Isn't burning the proper way to dispose of an old flag? I've heard of the boy scouts doing this in some type of ceremony. I guess it's all about the magic words you say over it that makes all the difference.

    Precisely. 36 U.S.C. 176(k) says "The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning."

    Of course, the section starts out "No disrespect should be shown to the flag of the United States of America," so only the VFW, the Boy Scouts, and other right-thinking people should be permitted to do it.

  5. GuestPoster says

    To paraphrase TV President Bartlett: "Is there some epidemic of flag burning I don't know about? Is this REALLY the most important thing on your minds?"

  6. En Passant says

    I am amazed that Congressmen can pass a bill imposing severe penalties on anyone who burns the American flag, whereas they are responsible for burning that for which the flag stands: the United States as a territory, as a people, and as a biological manifestation. That is an example of our perennial confusion of symbols with realities.

    — Alan watts (1915 – 1973), in an audio lecture "Individual and Society".

    'Nuf said.

  7. Chris B says

    @Lagaya1 Yes, burning is the proper way to dispose of a flag! But the difference between the "proper" way to dispose of a flag and burning a flag in protest is essentially the same difference between a viking funeral and burning someone in effigy.

    When I was a two-finger Scout my scoutmaster took us out back and walked us through the proper, respectful ceremony to "retire" an old flag via burning. If you saw such a ceremony firsthand, you'd never mistake it for some privileged white millenial asshole screaming "HAIL INTIFADA" and torching a flag with his zippo.

    All that being said, I'd defend to the death if necessary the right of said millenial asshole to burn a US Flag he owns.

  8. Kauf Buch says

    Leftists revel in Anti-American Chaos, on their quixote-quest to totalitarianism.
    Only when they are called out for their behavior,
    do they *suddenly* "discover" the 1st Amendment.
    HYPOCRITES.

  9. ivraatiems says

    @Argentina Orange

    I'm not Ken, but: Section 230 doesn't prevent Facebook/Youtube/anybody from having a censorship policy, or editing content. It just relieves them from any obligation to edit content.

    See here:

    Courts have held that Section 230 prevents you from being held liable even if you exercise the usual prerogative of publishers to edit the material you publish. You may also delete entire posts

    Editing your user's posts might be a dick move (arguable when the users themselves are all purposefully being dicks), and it might be hypocritical when you are pushing your website as a "bastion of free speech" (not that it ever was), but it isn't illegal.

  10. Simon Spero says

    In 2005 members of Congress — including then-Senator Clinton — proposed a rather narrow flag-burning law limited to situations where the burner intended to cause and was likely to cause imminent violence. That would have met the strict test defining "incitement." It still would likely not have been constitutional, because it singled out for punishment one specific type of expression likely to cause a riot, and therefore was based on content. But that's a different post.

    I'm assuming that R.A.V. governs here?
    Is the "likely" hedge inserted because the majority opinion's allowance for content discrimination made within "totally proscribable speech" if there is "no realistic possibility that official suppression of ideas is afoot. (We cannot think of any First Amendment interest that would stand in the way of a State's prohibiting only those obscene motion pictures with blue-eyed actresses.)"
    Despite the Milleresque wording, the law in Stevens wasn't defined in terms of obscene material, so it doesn't seem to override this dicta (dicked her?)

    Is there an R.A.V. lawspainer?

    Also, are there porn law flash cards?

  11. Dorothy M. says

    Ok, I'm trying to understand this. Flag burning is clear to me. Don't like it, but it is an expression of free speech. No one is being killed. The flag is not a person or animal. Where you and SCOTUS have lost me completely is when you tie freedom of speech in with crush videos. Someone suffers and is killed in a horrific way. Laws address the actual act. In a snuf film, that's murder. In a crush film that is extreme animal cruelty resulting in death. Laws address both. Now — here is where I get lost — it is illegal to make, sell / share, view snuff films (and child pornography). Why would it not be illegal to make, sell / share, view crush films? No freedom of speech issue with child pornography or snuff films, why an issue with crush films?

  12. says

    @Dorothy:

    The problem is that the law addressed making and selling videos of the activity, not the activity itself. It didn't outlaw cruelty to animals, only making videos of it. In other words, it targeted the expression, not the cruelty.

    Child porn is a special case sub-category of obscenity — and the court here is saying "no more special cases."

  13. Dictatortot says

    Dorothy:

    If I'm not mistaken, such videos are covered by animal-cruelty laws, and someone making them would be prosecutable under those laws. However, the issue here is laws that forbid it as a specific type of speech. IANAL, but I believe that the producers of the ugly stuff you cite as examples get prosecuted, not because the speech itself is illegal as speech, but because of the crimes they are necessarily committing red-handed on camera in the course of that speech. It's a slight distinction at first glance, but a legally crucial one.

  14. Encinal says

    The argument that flag burning should be outside the First Amendment can be applied with equal force to just about anything — "hate speech," "cyber-bulling," "revenge porn," "pro-ISIS speech," or whatever the flavor of the month is.

    I don't think that's quite true. The argument in the flag burning case was that the law is prohibiting a means of expressing an idea, but not prohibiting expressing the idea through other means. A law banning hate speech, on the other hand, would be directed at the idea itself, rather than the means.

    @Lagaya1

    Isn't burning the proper way to dispose of an old flag? I've heard of the boy scouts doing this in some type of ceremony. I guess it's all about the magic words you say over it that makes all the difference.

    Yes, and saying that the issue is laws banning flag burning is actually a bit inaccurate. As far as I know, there is no law banning burning flags in general. Such a law likely would survive constitutional challenge. What the laws prohibit is burning a flag for the purpose of expressing contempt towards the US. The essential element criminalized is not the physical act of burning the flag, but the expressive intent, and that is what makes the laws unconstitutional.

  15. Dave says

    How does the obscenity exception make sense anyway? It seems like something that got accepted just because everybody at the time was against porn…

  16. Ken B says

    This probably doesn't affect the main argument, but I don't see how crushing videos wouldn't be "speech integral to criminal conduct", with the assumption that the videos were made on purpose, and in conjunction with the criminal act of animal abuse.

  17. Barrett Craig says

    Why can't the Supreme Court take another look at flag burning after Trump packs the court with his picks?

  18. says

    @Barrett: It can. But the Stevens 8-1 majority suggests that it's more than adding a couple of justices. And it would require a significantly broader change than just about flag burning, which is my point.

  19. Agammamon says

    Regret says

    November 29, 2016 at 10:59 am

    Trump is a master troll. I'm surprised Ken took the bait.

    He didn't take any bait. Tons of *other* people all over the internet have – and since its topical he wrote an article explaining how these people are overreacting to what amounts to a personal opinion by a blowhard who, even as President, can't do anything to change already settled law.

  20. Agammamon says

    Barrett Craig says

    November 29, 2016 at 12:55 pm

    Why can't the Supreme Court take another look at flag burning after Trump packs the court with his picks?

    Wouldn't the SC have to wait for an appropriate case to revisit? Meaning there'd have to be a flag-burning case that made its way up to the SC and then they'd have to agree to take it on. It could be years before we got to that point – hell, Trump could be out of office and a new President picking a couple more SCJ's before they were in a position to overturn their earlier ruling.

  21. Kauf Buch says

    Oh, Dan, Dan, Dan (and Regret).
    When an intelligent man uses HYPERBOLE, it is NOT “trolling.”

    You’re playing checkers.
    Experts at 3D chess can maneuver well around politics…a blood sport.

    Learn the difference.

  22. Trent says

    There is no evidence whatsoever that Trump intends this be hyperbole. In fact I'd argue he's demonstrated time and time again that he would like to either severely restrict first amendment protections or do away with the first amendment entirely. He's repeatedly called for restrictions on speech that's critical of him, dramatic expansions of libel and other rather significant expansions of speech restrictions.

    IMO this all falls in line with his other vast and extensive calls to remove constitutionally protected rights, such as the recent call to strip people of their citizenship, legalization of torture and the many, many others he's made over the last couple years. For all his claims of respecting the constitution and love of country (flag waiving) he'd sure like to gut the constitution of it's protections. Not unlike many of the other people that waive flags while calling for equally vile restrictions.

    I suspect this presidency and it's supporting legislature is going to go down as the one that tried to implement the largest number of unconstitutional laws in history.

  23. DoctorX says

    Thanks for this, particularly for addressing the arguments raised by non-lawyers and "It Should be The LAW!" types on Al Gore's interwebs.

  24. Chris B says

    Trent,

    And while you're busy arguing over whether or not something stupid Trump supposedly tweeted matters, no one is talking about the legitimately shady shit (like conflicts of interest).

  25. tehy says

    first commenter said it all. Ken, is the CEO of reddit going to get arrested for editing posts or not? I need a lawsplainer on this, because it's actually something I don't know about but desperately want to. I been known that flag burning is OK and Trump needs to shut his Pie Hole about it.

  26. says

    re: Reddit:

    Significance of Reddit CEO editing user posts is that at some point, a host editing user posts loses the protections of Section 230 — the line of where is a bit unclear (it's not just editing for content or censorship, though, it's closer to co-creation of content).

    Since the Reddit dude only edited posts directly swearing at him using his username in a way that triggered reports to him, and only did it in a way to tweak the people doing it, it doesn't really bother me as an abuse of power.

  27. Neil W says

    Flag Code: The proper way to dispose of an old flag is burning (paraphrase)

    Trump: Nobody should be allowed to burn the American flag

    USA in 2019: 17% of land area of the lower 48 states covered in the Stars and Stripes

  28. Trent says

    ChrisB,

    I'm perfectly aware of and drastically appalled by his financial connections to foreign states and his unwillingness to divest himself of those assets. But the reason no ones talking about it isn't because it's not getting coverage, it's because the vast majority of Americans either don't understand the issue or frankly don't care.

    I'm personally very worried that our President has 80% of his business loans tied to the Russians and People Bank of China and he refuses to divest those assets, and that this presents a significant and dangerous opportunity for hostile foreign powers to have direct leverage over our chief executive. The Russians and Chinese have the potential leverage to bankrupt Trumps business empire if he takes actions they do not like and I have no doubt in my mind that he would cave in such a situation to the detriment of the American people or even worse start a war over it.

    But with so little public interest over the issue saying these calls to revoke constitutional protections are cover is frankly ridiculous. These are his real feelings as he's made these calls for a long time, long before he started his campaign he's called for changes to Libel laws to would bar free speech around public figures and I doubt you'd have little difficulty finding videos or statements advocating these exact measures from the previous flag burning debates. This all falls in line with his previous praise for dictators that stomped out opposition through force. The man likes dictators.

    NeilW,

    Previous flag burning laws have also outlawed other forms of desecration including placing the flag on the ground. I guess they'd have to mandate that everyone have a closet full of flags so as to avoid burning any or allowing them to touch the ground.

  29. CRT says

    @Ken

    Just for the record, /u/spez turned off those notifications ages ago, or so he said in a leaked discussion among the admins, if not he'd have probably gone crazy some months ago.

    This all came up with the banning of /r/pizzagate (now /v/pizzagate on voat) which actually could feed you an article about defamation law, as many people started expressing an opinion that he was in favor of pedophiles or possibly one himself based on his actions of banning pizzagate but not, e.g. /r/pedochat or /r/pedofriends (n.b. I have *not* visited these subreddits myself, I make no claims about what they contain, I'm working from memory so I'm not even sure I have the right subreddits) and I think I saw something alleging he had some connection to… /r/canniabals as a mod or something? Again, not a sub I'm familiar with and I'm going from memory so I might have the wrong sub.

    So… yeah. I won't blame you if you don't touch that one.

  30. David Williams says

    Couldn't crush videos be made illegal as "obscenity"? It's a recognized exemption from free speech protections. Or did I miss something?

  31. gray says

    2019: In an 11-4 decision, the US Supreme Court upholds the stripping of US Citizenship from an arsonist because he clearly should have known that the house he burned down at random probably had a closet full of flags in it.

  32. Encinal says

    When one edits a post, one is posting the edited post as a post by the original author, which it is not. Is that not defamation and impersonation?

  33. says

    @David: In theory. But Congress wanted to ban all crush videos without having to satisfy the test for obscenity, which is complex and difficult.

  34. Chris B says

    Trent,

    "These are his real feelings"

    You have no way of actually knowing that. Unless you have mind reading powers.

    You have to tell us if you have mind reading powers.

    Similarly you have no way (currently) of knowing if he even wrote the tweet in question, or if it was one of the random staffers that apparently were seen tweeting on his behalf during the campaign.

    None of this is meant to excuse the blatant stupidity and wrongthink of the tweet, just to point out it's all a distraction. What @realDonaldTrump tweets practically doesn't matter, except for the fact that people (on all sides) freaking out about it only helps him.

    You know, I kinda dismissed Trump as a clueless idiot until the whole Hamilton cast tweet incident. Then, seeing how people were only talking about something stupid a bunch of actors did the same night foreign dignitaries were being taught how they could suck up to the President-elect by staying at a Trump Resort, I began to get a sense of dread that Trump may in fact secretly be a genius.

  35. Trent says

    I'm absolutely not going to tell you that I can read minds. I'd be abducted by the CIA or NSA..

    I can't know with absolute certainty that what I said is true, but I believe it is. And though some of his tweets are undoubtedly done by others his style makes his tweets absolutely identifiable. No staffer is tweeting for him at 3am and just as likely no staffer is tweeting about taking away people's citizenship for burning a flag or that the central park 5 should still be in jail even though someone else confessed to the crime, was a repeat sex offender, was an original suspect in the case and had details that only the police knew.

    Though I believe with absolute certainty that Trump is a complete and total liar who will say anything I also believe his real opinions and positions leak through if you are paying attention and know his history before the election. He's always hated criticism and he's always hated that he can't sue people that criticize him, he's ranted about this for decades. As a result I have no problem attributing a tweet saying laws should be reformed making it libel to insult people regardless if it's true or not to be with absolute certainty his true position on the matter. Just like his "law and order" history including offering a $20K bounty in the Central Park jogger case make it highly likely that when his account tweeted that the innocent kids originally convicted of doing it but later found innocent should still be in prison, that the tweet was by his hand and is his true position.

    Thus I can in fact read his mind. No wait…..

  36. Kazzy says

    Informative piece. But I have to wonder… how did we arrive at the exceptions we do have? Were those baked in from the get go? Or carved out by the legislature and the courts? Do you see no possible exceptions that the court might need to carve out? Are the exceptions we currently have the only legitimate ones possible?

  37. Matthew Cline says

    @Ken:

    I've seen some people saying that the Supreme Court declaring wordless actions protected by the 1st amendment was "judicial activism" which should be overturned, and if that was overturned then there'd be no problem banning flag burning. How likely would that be?

    _____________________________________________________________

    @Kauf Buch:

    Only when they are called out for their behavior, do they *suddenly* "discover" the 1st Amendment. HYPOCRITES.

    There are plenty of people (Ken included) who would defend both the right to burn flags and the rights (for example) of the KKK to publicly march.

  38. Dorothy M. says

    Ken White and DIctatortot, Thank you for replying to my questions. I did not realize the "special case" aspect, and I can see the pointlessness in making something that is already illegal as a criminal act a freedom of speech issue. So, please correct me if I'm wrong, if youtube made a policy against the posting of videos showing illegal acts, that is not a violation of freedom of speech. But if they made a policy against the posting of videos showing flag burning, that would be a violation of freedom of speech because flag burning is not a criminal act? Or can any website restrict its content in any way it chooses without that being a freedom of speech issue (sort of like making a no-cursing / swearing policy for one's own household)?

  39. C. S. P. Schofield says

    The vast majority of people who burn flags (and other things) at protests should be given a ticket/fine for lighting a fire in a public place without the proper permit. KKK pests are required to get a fire permit in order to hold a cross burning ceremony, and flag burners should be treated the same way (i.e. with amused contempt). Depending on the size of the flag and the prevailing conditions, the officer on the scene might consider adding a charge of reckless endangerment; a flag the size of, say, a beech towel does not make for a safe fire when ignited on any kind of wind.

  40. Dan says

    @Dorothy M.

    Or can any website restrict its content in any way it chooses without that being a freedom of speech issue (sort of like making a no-cursing / swearing policy for one's own household)?

    Pretty much. Put more precisely, it wouldn't be a First Amendment issue, because no government action is involved. It could still be loosely (and debatably) considered a "freedom of speech" issue, but the example you use is a good one–your house, your rules. Your website, your rules.

  41. Christoph says

    Shoud you, hypothetically, of course, get stripped of your US citizenship after burning a US flag, would you still have to pay the normal fees that are applicable when you renounce your citizenship, or would this be a "get out of US citizenship free!" card?

  42. Jay says

    Congress did pass a new crush video law in 2010. As far as I can tell, the old law attempted to ban any video of animal abuse, which could, for example, prohibit animal rights activists from filming cruel treatment in order to bring attention to it, while the new one purports to be more narrowly limited to crush videos for sexual gratification. Do you believe the new law would withstand constitutional muster? If so, under which first amendment exception? Obscenity?

  43. not an anon says

    There's another problem with prohibiting the trafficking in depictions of something instead of prohibiting the act depicted — we (as a society) know how to depict something without actually doing it. Just as Hollywood didn't need to somehow hatch a fire-breathing dragon and have it incinerate a set to film The Desolation of Smaug, we can depict some angry lady stomping on a rat without harming any rats in the process.

    As a result, a statute prohibiting "depictions of animal cruelty" not only is no good by the standards applied in Stevens, but is overbroad and overly restrictive compared to the conduct it is trying to reach as well — it reaches things where no actual animal cruelty ever is involved, such as a flipbook animation of an angry lady stomping on a rat.

  44. says

    @Dorothy M: a private website is not bound by the First Amendment, since it's not a state actor. It can ban pretty much whatever it wants (with, possibly, exceptions based on some anti-discrimination laws). Some people will call that a free speech violation, but they mean it colloquially, not legally.

  45. Tom Scharf says

    Trump rings the Twitter bell, the media salivate like trained dogs.

    Trump looks patriotic, the media and the left fall all over themselves screaming burning the US flag is a divine right. However if someone wants to burn the Koran, a sermon from on high is given how this person needs to be condemned far and wide for their egregious act of intolerance.

    Burning the US flag needs to be protected, burning the Koran needs to be condemned. Burning the US flag is about the law, burning the Koran is about morals. Perhaps the other side sees things differently.

    Is anyone still confused how Trump won this election?

  46. Noah Callaway says

    @Tom

    You're being a dumbfuck. As a person on the left, here's how it works:

    * (Most of us) think burning the flag should be legal. It's protected 1A speech.
    * (Most of us) think burning the koran should be legal. It's protected 1A speech.
    * (Most of us) think burning the flag is disprectful. Those that disagree with it should use our speech to condemn those actions.
    * (Most of us) think burning the koran is disprectful. Those that disagree with it should use our speech to condemn those actions.

    Not so hard.

  47. Tom Scharf says

    Ken,

    I'm not addressing you specifically, I imagine your views are pretty consistent here. I'm referring to the incident of the Florida pastor plans to burn the Koran around 2010(?) and another incident of some soldiers allegedly burning some Korans. My point being how the goalposts are shifted in the media with these examples between legal and moral views depending on which tribe one is in.

    In this example I think the left does itself a disservice by allowing Trump to drag them into looking unpatriotic which doesn't play well in flyover country. Defending and respecting the flag are pretty deeply held in the red tribe (why the blue tribe would cede patriotism to the red tribe is a bit baffling and an argument for another day).

    What I didn't see in the media coverage of the latest flag burning and college flag removal was a condemnation of the action while still supporting the right to do it. This can be interpreted as implicit approval of the action. Bad optics.

    This is where Trump is winning the argument on an emotional level which matters in the voting booth. Just because Trump is exploiting patriotism to win doesn't mean the left has to be against it. This exercise where patriotism has been given the euphemism "nationalism" with a negative connotation seems ill conceived.

  48. Tom Scharf says

    Noah,

    I pretty much hold the same views you do (except the part where I am a dumbfuck, ha ha). However I think the media coverage is not consistent with your list. I read a lot of the coverage and didn't pick up on the condemnation of flag burning, perhaps my bias is in the way.

    NYT on flag burning (law)
    http://www.nytimes.com/2016/11/29/opinion/mr-trump-meet-the-constitution.html?_r=0

    NYT on Koran burning (morals)
    http://www.nytimes.com/2012/02/24/opinion/self-inflicted-wounds.html?rref=collection%2Ftimestopic%2FKoran

  49. Jackson says

    @Ken

    I think you undersell the real issue with the Reddit conduct from a legal perspective (and what Reddit's investors should be concerned about): it's not that Reddit loses Section 230 protections (though I also don't have a good idea as to where exactly the line on that is, so if I was think about advising Reddit in some future hypothetical – as in this is not actual advice – , I'd consider going down the path of "maybe you shouldn't edit user posts at all" as a pretty good bulwark against it).

    Rather, the problem is that now Reddit is going to be suffering potentially much higher (and more annoying) discovery costs as any half-assed attorney can allege that, actually, Reddit does have a history of editing posts, so my client's insane rantings where he said whatever bad thing should be assumed to be not the actual words he spoke until Reddit proves (and if you want to go one layer deeper, a 3rd party external to Reddit because clearly we can't trust those post-editing trolls) they didn't modify that stuff.

    So yeah, enjoy getting roped into a shitload of cases as a 3rd party and spending more money than you should have to as Reddit anytime a prosecutor or plaintiff uses a Reddit post as evidence. That would be my real worry for them here; not that they lose Section 230 protection but rather that they probably have at least a medium-term increase in discovery costs and annoyance because we know how people actually use the legal system, as is well documented on this very site.

  50. Dorothy M. says

    not an anon, Jay, Ken White and so many others, thanks for explaining those points that were not clear to me. They are now. Interesting that the legal attempts to "protect America" by restricting free speech can ultimately undermine everything that America is and interfere even with law enforcement's ability to use the internet to catch the bad guys. I would rather have the idiots posting their cruel and illegal acts online rather than getting away with them in secret.

  51. Dorothy M. says

    Tom, While you make an excellent point about Trump exploiting "patriotism" and the left missing an opportunity in their response to that, Trump's version of patriotism conjures up visions of Hitler's youth in their little uniforms all grouped together so "patriotically" for the Mother Country. Gives me the shivers. And, anyway, any thinking person would realize that his "patriotism" is pure B.S. A patriotic person is glad to pay their taxes, wouldn't use illegal Chinese Steel to maximize their business profits, wouldn't rip off their fellow citizens with phony "university" scams, etc. and so forth. The problem is not Trump. The problem is lack of critical thinking on the part of so many people. People who love this country just do not act the way he does, and actions speak louder than words if one is listening. His brand of patriotism has created a sort of mass hypnosis among his followers. Who does that remind you of?

  52. Curt says

    RE: Fighting Words…

    Not that you're promoting the idea, but how does that even work? For example, Guy 1 is holding a flag and lighter and about to put them together. Guy 2 says, "You burn that flag and I'm gonna whoop your ass." Guy 1 lights the flag. Guy 2 starts punching.

    Would Guy 2's threat be considered Fighting Words? Would Guy 1's lighting of the flag be fighting words?

    Just seems like a stupid concept. I guess I probably have to wait for podcast to hear just how stupid it is?!

  53. Tom Scharf says

    Dorothy,
    I get that you and many others have "Hitler youth" visions and can track down some fringe elements that exist, but I think this is unsupported in reality. The connection to Hitler is intentionally inflammatory as there is a large distance from patriotism to fascism to Hitler. The Trump is Hitler (or fill in the most evil person you can think of) meme was overplayed and ultimately counterproductive in my opinion.

    The days of insulting and labeling the opposition with incendiary terms as a winning strategy are probably gone (has this ever worked?) and I wouldn't recommend this strategy in 2020. Personally I think an inflection point in this election is when people started attacking Trump supporters en masse instead of Trump.

  54. Jay says

    Curt:

    "Fighting words" are a rarely used first amendment exception, and I think it's pretty unlikely the doctrine would be created today, especially with the facts that actually started the exception. Chaplinsky called a cop who was arresting him a "damned fascist" and "damned racketeer". It's hard to imagine today's Supreme Court upholding a conviction for calling a cop a fascist.

  55. Dorothy M. says

    I'm sorry, Tom, but the similarities between Trump's brand of exploitation patriotism and the willingness of his followers to overlook his outrageous character flaws is just too reminiscent of Nazi Germany. To not give voice to the obvious is to be like all the people in the fairy tale who agreed the emperor had a great set of new clothes when he was actually naked. I would rather be the little kid who yelled out that the emperor was indeed naked. If there had been more of those in pre-war Germany, maybe Hitler's movement would never have gotten off the ground.

  56. Tom Scharf says

    Trump is Hitler, his follower are Nazis, people voted for him because they want death camps and WWIII. There is no other reasonable explanation, you win.

  57. Dorothy M. says

    Tom, In the beginning, Hitler's supporters didn't "want death camps." They were caught up in bigotry and hate disguised as patriotism. They were bamboozled and woke up to realize that very late in the game. That is what I am seeing now with Trump. Something very dark disguised as patriotism and many people falling for that. Hoping that history is not repeating itself.

  58. Guy who looks things up says

    @Tom Scharf

    I'm sad to see you lose your shit there. Before that you seemed like an issues-focused guy with interesting insights and an actual sense of humor.

  59. Reasonable Person says

    @Dorothy M.

    Hitler's movement was intrinsically violent, as can be seen from events like Kristallnacht. There's no coordinated movement of violence that you can link Trump supporters to, other than perhaps being victims, as with the violence that was staged at their rallies, which Wikileaks allows us to tie specific, named Democratic operatives to, even as far as linking individuals to FEC filings putting them on the MoveOn payroll at the time, showing independent videos where they appear to by lying to the cops, etc. For anyone who wants to argue that Wikileaks emails were "modified" I suggest you look into what DKIM headers are, how the DKIM keys for those particular DKIM selectors can still be obtained from the DNS servers of the relevant domains, and how the DKIM hashes generated by Google's mail servers (among others) cover the message body, not just the email headers before making that argument to avoid saying anything that is provably false. Suffice it to say that if you read the article on here where CNN said it was "illegal" to read Wikileaks, the technical argument as to how the emails can be validated with DKIM hashes using their own keys is even more devastating as particular, important emails can be proven mathematically to be unmodified.

    Now if you want to invoke Karl Popper, please note that he justified the intolerance of intolerance by appealing to the right of self defense from violence. So unless you can show a lot of people using fists and pistols instead of reason, your preference for banning "intolerance" is not well-founded. Trying to shoot down ideas by tying everyone one doesn't like to Nazis is, of course, a popular internet past time that I don't expect to end any time soon, according to Godwin's law.

    You can see evidence of the same kind of thinking in the US's free speech jurisprudence, in the sense that we see that many of the few kinds of unprotected speech are based on some kind of reasonable expectation of violence such as true threats, fighting words, or incitement to violence.

  60. Chris B says

    @Guy,

    In Tom's defense, the response to his points was ignoring them and doubling down on "Nazis!"

    I don't find his response particularly unreasonable in that context. The conversation obviously had no chance of being fruitful.

  61. Jackson says

    @Chris B

    Of course there's no chance of it being fruitful. One side is literally Hitler! This should be accepted uncritically and without examination! When is Ken going to ban him for hate-speech on this site? Clearly there is a first amendment exception for that.

    If not, Tom's probably guilty of RICO anyways.

  62. Dorothy M. says

    Reasonable Person, exactly! Hitler's movement was violent. Trump's movement was violent (remember Trump suggesting someone shoot Hillary Clinton, and the "Lock Her Up" chanting, Trump supporters beating protesters up, etc.?).

  63. Chris B says

    Dorothy,

    Trump did not suggest someone shoot Hillary Clinton. And even if he did, that is not remotely similar to smashing all the businesses of an ethnic minority in a single night and murdering many of the proprietors. Same with chanting "Lock Her Up". You are conflating speech with violence quite purposely, cut it out.

    There were fisticuffs in both directions around Trump rallies/supporters. This was not a coordinated, organized campaign of violence on behalf of Trump supporters any more than people getting beat up at Phillies/Eagles games is a campaign of violence on behalf of Philadelphia sports fans. It's just an unsurprising consequence of putting a large number of loud assholes who support different teams in close proximity with each other.

    Actually to be honest, after living several years in the Philly area I'd probably be more willing to condemn its sports fans as goons engaging in a organized campaign of violence than "Trump supporters."

  64. Dorothy M. says

    Beyond the snark that so often passes as intellectualism these days, there is a real danger is normalizing the abnormal. That is what Trump supporters have done. They have normalized then elected a man who is deeply disturbed with white supremacist leanings, a deep-seated disrespect for women and an ability to lie whenever it suits. A petition (no pr for racists) is out there regarding how the press is choosing its language to mainstream radical right views. Some of you may find this interesting: http://action.18mr.org/noprforracists/?link_id=1&can_id=b3d2bf04f2524df9b4f22c9d0124c06a&source=email-tell-the-media-to-stop-doing-pr-for-racists&email_referrer=tell-the-media-to-stop-doing-pr-for-racists&email_subject=tell-the-media-to-stop-doing-pr-for-racists

  65. Dorothy M. says

    Huffington Post: "Donald Trump Suggests Shooting Hillary Clinton, Her Supreme Court Picks, Or Both
    'A person seeking to be the president of the United States should not suggest violence in any way,' the Clinton campaign responded.
    08/09/2016 03:52 pm ET | Updated Aug 09, 2016"

  66. Chris B says

    Dorothy,

    Read his actual comment. He never said someone should shoot Hillary. He made a vague statement about the second amendment. If you're pre-disposed to assume the worst about everything he says, then you could torture it maybe into being a suggestion of someone being shot, but even then it would come off as hyperbole.

    I'd in turn recommend "You Are Still Crying Wolf" by Scott Alexander at the Slate Star Codex.

  67. ben says

    A neocon-leaning fellow I know made the following argument:

    "Flag Burning is indeed speech, and the content of that speech is a rejection of the USA. So it shouldn't be criminalized, but the citizenship of those who engage in it should be revoked."

    Is there any legal basis for this?

  68. Chris B says

    ben,

    A previous excellent Popehat article talked about the Supreme Court unanimously upholding a KKK leader saying they should take "revengeance" on Politicians and Judges that don't do what the KKK wants is protected speech. Also that someone saying (paraphrased) "If I'm drafted, the President will be the first person in my rifle's sights." was also protected speech. So, no, there's no legal basis for that.

  69. DRJlaw says

    @ben

    Is there any legal basis for this?

    No. According to the Fourteenth Amendment, "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." I don't see a part that says "unless that person criticizes the United States, which histrionically interprets it as a rejection of the entire state, whereupon the United States shall have the power to act super passive-aggressive."

    The judiciary does a marvelous job of "balancing" away rights, so I imagine that there could be severe criminal acts that merit loss of citizenship (mostly snark; some hedging based on ignorance because we ordinarily execute or permajail literal traitors), but I'm pretty sure that civil punishments involuntarily stripping someone of citizenship for equivocal acts would be right out.

    8 USC 1481 says that one must "voluntarily perform[] any of the following acts with the intention of relinquishing United States nationality." Pretty sure the intent aspect couldn't be eliminated without violating the Constitution. That makes whatever your neocon-leaning fellow believes virtually irrelevant. And look, it even includes treason as one of the acts, so maybe there can't be any involuntary loss of citizenship at all.

  70. Reasonable Person says

    > Hillary Clinton, and the "Lock Her Up" chanting

    That was based on suspicion of illegal activity and Trump called to appoint a special prosecutor. That's a far cry from randomly jailing someone.

    > Trump supporters beating protesters up,

    I already addressed that: those acts were literally staged and this can be corroborated with a huge amount of independent evidence I'd rather not rehash. This can be proven from Wikileaks emails, which we can prove, cryptographically, were not modified via DKIM hashes, via video evidence (both partisan and independent), via FEC logs showing specific, named MoveOn operatives being reimbursed for travel to those exact protests on the right dates, etc.

    I guess there was the time the Secret Service took out a guy after someone thought he had a gun. He was also a democratic operative, though. Some people showed that a dead person had been voting by mail for several years from his address on the same day he had, as well, based on public records.

    There was also a previous attack wherein a person from the UK tried to steal a gun from security and told them that he intended to shoot Trump. You'd be excused for missing that, because there wasn't much coverage.

    As for the "shoot her" thing, he did not actually say that. It's pretty clear in context that he was suggesting for NRA voters to vote against her, given that they're one of the largest conservative voting blocks. I can at least see how someone predisposed to believe he was violent (due to the above staged attacks), but that's not how his supporters understood the message. I was not able to locate any actual, serious attempts, either: https://en.wikipedia.org/wiki/List_of_United_States_presidential_assassination_attempts_and_plots

    Unless you want to count the Bosnian sniper thing?

  71. Sami says

    Okay, that crush video thing: is it just me, or is that a really fucking problematic case?

    Because it seems to me like it should be absolutely trivial to structure a ban on recreational animal cruelty and the profit therefrom such that it doesn't get struck down on First Amendment grounds.

    Trying to push that through with an argument that would establish a case-by-case exception precedent for the First Amendment is a stupid way to accomplish that ban, and seems more like a how-can-you-be-against-this vehicle for an attempt to *establish that precedent*.

    I am not a freedom of speech absolutist and am pretty sure I qualify as a censorious fascist around here, but that would be dangerously wrong even by my standards. While I think there is room for disagreement on where the limits of freedom of speech should fall, if at all, the *manner* in which those limits are determined *really fucking matters*.

  72. Xmas says

    @Sami

    There is another comment in here that pointed out another anti-crush video law was passed in 2010. That one was more narrowly tailored toward videos created for sexual gratification, which puts them in the obscenity category.

    I was thinking about the snuff film area too. Depictions of people actually dying aren't illegal, otherwise liveleak would have been shutdown ages ago.

  73. Total says

    As for the "shoot her" thing, he did not actually say that. It's pretty clear in context that he was suggesting for NRA voters to vote against her

    Er, no. The quote is:

    "Hillary wants to abolish — essentially abolish the Second Amendment. By the way, if she gets to pick, if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don't know."

    He's talking in the context of her *already* being elected and there being nothing people can do. You can torture that into a reading where he's suggesting the NRA might lobby against her judicial picks but the plain meaning is a violent one.

  74. Chris B says

    Total,

    Anyone who sees a "plain meaning" in that statement is seeing what they already intended to see. And that applies to both sides.

  75. Tom Scharf says

    Parsing the literal meaning of everything Trump says and bending it to your preferred angle of evil is endless fun. If you enjoy it, please keep doing it. Trump is constantly talking off the cuff and is a general blowhard and he doesn't care if people want to parse his words by the 2015 journalism gotcha standards of politician self elimination.

    I don't care either. Others are free to care and do their best to convince others Trump wants NRA members to shoot HRC. Good luck but I think this thought process is a bit unhinged. I was already weary of the way politicians were talking before 2016. Everything out of a 2015 standard politician's mouth sounded like a group tested lobbyist reviewed robot that couldn't possibly ever pass a Turing test. I prefer a flawed person that appears sincere over a heavily polished fake. HRC was probably the most heavily polished turd ever created, ha ha. Romney too. Perhaps Trump is also a fake, but he was an unblemished fresh turd crapped out there in the middle of the street without shame for everyone to see. But I digress…

    Gotcha journalism needs to go. The fainting spells in the media anytime someone says something that could be construed as a politically incorrect thought has produced the most insincere and indecipherable group of politcobots my generation has ever seen. Report what they say, drop the faux indignation, and let the reader decide. If the next election cycle becomes another turd polishing contest, Trump may end up being a two termer.

  76. Total says

    Anyone who sees a "plain meaning" in that statement is seeing what they already intended to see.

    Or is just reading what he said.

    Trump is constantly talking off the cuff and is a general blowhard and he doesn't care if people want to parse his words by the 2015 journalism gotcha standards of politician self elimination.

    Actually, people just want to parse his words to find out what the next President of the United States thinks. That seems to me not to be unreasonable.

    Gotcha journalism needs to go

    Gotcha journalism has been a constant feature of American political life since the beginning. Politicians have been parsing their words carefully since the beginning, and Internet commenters have been complaining about it since the beginning. George Washington used to get frustrated by what reddit said about him, back in the day.

  77. Encinal says

    @Total

    He's talking in the context of her *already* being elected and there being nothing people can do. You can torture that into a reading where he's suggesting the NRA might lobby against her judicial picks but the plain meaning is a violent one.

    If you were to read it as a violent one, it is in the context of Clinton taking away the second amendment. So the WORST reading of that is "If Clinton stacks the court with judges who oppose the second amendment, and she then gets laws passed against guns, and she tries to take away everyone's guns, people with guns can use violence to oppose her."

    In other words, the absolute worst reading of his statement is that if Clinton tries to tear up the constitution, people will oppose her violently.

    Or is just reading what he said.

    That's just fucking bullshit. There's no way you can get to violence by a literal reading of what he said. There has to be inference. You may think it's blatantly obvious inference, but it's still inference.

  78. Total says

    That's just fucking bullshit

    Well spoken, sunshine. If you mean by "inference" reading the quote in pretty much the only possible way it could be, then yes I guess I did infer.

  79. Chris B says

    If you mean by "inference" reading the quote in pretty much the only possible way it could be, then yes I guess I did infer.

    Yeah, no. That's not even remotely the only way the comment could be read, unless you've already determined how you want it to be read.

    "Second amendment folks" doesn't imply gun violence–except maybe to people who are bitterly opposed to the second amendment. A (arguably much more believable) definition of "second amendment folks" would be lobbyists and lawyers (e.g. the NRA) who work on second amendment issues as their day job.

  80. Ken in NJ says

    "Second amendment folks" doesn't imply gun violence

    Really? Because DT was pretty clear that they are the only group who can "maybe" do "something" to stop Hillary. He says that if she is elected, once she is starts appointing justices, there's nothing anyone can do. Except that one specific group.

    So what exactly is it those "second amendment types" can do that everyone else can't? Vote? No, that doesn't make sense, because his little hypothetical was talking about what will happen after she's elected. So what on earth is it that those "second amendment types" have that everyone else doesn't that would allow them, and only them, to "maybe" be able to do something to stop Hillary once she appoints her anti-gun Justices?

    Is it political opinions? Easy access to petitions? A willingness to hold rallies? Money to make television ads?

    Yes, it's a real head scratcher, this one.

  81. Tom Scharf says

    Gotcha journalism just failed in every way imaginable. The media was in near unison on their condemnation of Trump's statements and performed like a hive mind in opposing him on what appears to be some convoluted moral duty to the Republic.

    People didn't listen to them, and they certainly weren't listening to the people. Their gate keeping duty was just exposed as an ineffective mirage. It is the duty of the media to convince their readers and this failure of communication is theirs to solve. Certainly highly educated sophisticated city slickers should be able to communicate effectively to knuckle dragging country bumpkins?

    I will give the NYT credit (a rare occurrence from me, ha ha) as I have seen a marked increase in articles on areas in "Trump's America" over the past several weeks which were quite non-judgmental. Some of it comes off as twisted anthropological affair but it is a good start.

  82. KeithB says

    Are we doomed to have this conversation about Trump's "Second Amendment Folks" every few weeks until the end of time?

    The problem is we have no idea whether he botched the dog whistle or not.

  83. Tom Scharf says

    I hesitate to even comment on this, but is it not obvious that slowing HRC's gun control legislation would be done by legal challenges? Isn't this the way every single piece of gun legislation has been beaten back without the need of armed conflict? Isn't this what the NRA is particularly good at? What gun control activists are good at?

    If someone asked you what would be done to fight gun control legislation, the answer is obviously NRA members will kill HRC? And nobody would have even thought of doing this if Trump wouldn't have passed this "secret" message to them in front of the entire media who then dutifully reported it to everyone?

    Let's assume that actually happened, the alleged result of this assassination would be gun control legislation would then be abandoned? What happened after Reagan was shot? Less gun control?

    In every election cycle two things are guaranteed:

    1. The right will say the left will take your guns away.
    2. The left will say the right will take your social security away.

  84. EA5 says

    Ignoring the just barely plausibly deniably vague 2nd amendment comment, can I use Trump's support of mass deportation, national stop and frisk, torture, and surveillance of Muslims as evidence that he called for violence and discrimination against minority groups?

  85. Chris B says

    So what exactly is it those "second amendment types" can do that everyone else can't?

    First, you're assuming a being "second amendment type" implies firearm ownership. It doesn't imply firearm ownership anymore than being a "first amendment type" implies you own a printing press. Take for example Scott Greenfield: He's not a fan of guns, and yet he defends the second amendment all the same.

    Second, cases have been won–even at the Supreme Court level–when heard by less than sympathetic justices (a recent example: the ACA). Also we've been hearing for years now how scary the NRA is and how it can supposedly browbeat Congresscritters into voting the way they want. If the Supreme Court said "Our bad, we were wrong in Heller, the second amendment is not an individual right." Congress could still pass legislation to clarify that U.S. Citizens do have an individual right to bear arms. It wouldn't have the reverence of the Bill of Rights behind it, but it would still be binding and not easy to challenge.

    So there's at least two things "second amendment types" could do that don't involve shooting anyone.

  86. Total says

    Yeah, no. That's not even remotely the only way the comment could be read, unless you've already determined how you want it to be read.

    Oh, sure it is.

    A (arguably much more believable) definition of "second amendment folks" would be lobbyists and lawyers (e.g. the NRA) who work on second amendment issues as their day job.

    And you're accusing me of reaching for obscure meanings? Donald Trump was really standing in front of a giant crowd saying "Maybe the lobbyists can save us"? 'Maybe Congress can save us"?

    Uh-huh.

  87. Reasonable Person says

    However you understand that message, I won't change your mind. But we have empirical evidence in that there have been no serious reports of attempts on her life. So no matter how you understood that message, it's clear that nobody the message was actually addressed to took it as a reason to make any attempt on her life, because no one did so.

  88. Total says

    But we have empirical evidence in that there have been no serious reports of attempts on her life. So no matter how you understood that message, it's clear that nobody the message was actually addressed to took it as a reason to make any attempt on her life, because no one did so.

    Yes, when Clinton was elected President and tried to get rid of the 2nd Amendment, no one tried to assassinate her. Your empirical evidence could not exist because the condition that Trump postulated never came to pass.

  89. Jackson says

    So you're saying that you're arguing a hypothetical that can't even be possible in any current reality on the internet?

    I'm sure this is worth discussing further. Please proceed.

  90. Total says

    So you're saying that you're arguing a hypothetical that can't even be possible in any current reality on the internet?

    And you're arguing that Trump could time travel, so he knew when he made the remark that Clinton really couldn't win?

  91. Chris B says

    And you're accusing me of reaching for obscure meanings? Donald Trump was really standing in front of a giant crowd saying "Maybe the lobbyists can save us"? 'Maybe Congress can save us"?

    Actually if you scroll back you'd see my opinion was that there is no clear meaning to his statement. My personal translation of what he was saying would be "DERP DERP HERP DERP." I don't think I lost any of the important meaning.

    I will, however, adopt the stance that if you immediately associate the phrase "second amendment folks" with shooting people it says more about you and your beliefs than the speaker.

  92. Encinal says

    @Total

    If you mean by "inference" reading the quote in pretty much the only possible way it could be, then yes I guess I did infer.

    By "inference", I mean exactly what the dictionary says. it is an OBJECTIVE FACT that Trump did not say that Clinton should be shot. It is your OPINION that he implied that. If you insist on denying this , you're just showing your refusal to accept reality.

    @EA5

    Ignoring the just barely plausibly deniably vague 2nd amendment comment, can I use Trump's support of mass deportation, national stop and frisk, torture, and surveillance of Muslims as evidence that he called for violence and discrimination against minority groups?

    Can I use Clinton declaration that this being one nation under God is a bedrock value of American democracy, accusation that atheists are trying to take away Christians' freedom, and implication that all social progress has been due to people who believe in God, as evidence that she called for discrimination and violence against a minority group?

  93. Encinal says

    @Tom Scharf

    The connection to Hitler is intentionally inflammatory as there is a large distance from patriotism to fascism to Hitler.

    But it's not just patriotism. You yourself said:

    In this example I think the left does itself a disservice by allowing Trump to drag them into looking unpatriotic which doesn't play well in flyover country. Defending and respecting the flag are pretty deeply held in the red tribe (why the blue tribe would cede patriotism to the red tribe is a bit baffling and an argument for another day).

    This is where Trump is winning the argument on an emotional level which matters in the voting booth.

    Tying your side to “patriotism”, tarring everyone who disagrees with you as “unpatriotic”, relying on emotions and elbowing out all reasonable discussion really is pretty far down the road to fascism.

    The days of insulting and labeling the opposition with incendiary terms as a winning strategy are probably gone (has this ever worked?) and I wouldn't recommend this strategy in 2020.

    That's like looking at Steph Curry losing to the Cavaliers and saying “It looks like the days of black people dominating the NBA are over.”

    a popular internet past time that I don't expect to end any time soon, according to Godwin's law.

    “Past time” is an incorrect analysis of “pastime” as a compound of “past” and “time”, when it originated as a compound of “pass” and “time”. As in, something to pass the time.

    @Reasonable Person

    Hitler's movement was intrinsically violent, as can be seen from events like Kristallnacht

    Hitler became the leader of the Nazi Party in 1921, and was appointed chancellor in 1933. Kristallnacht occurred in 1938. If you're going to claim that violence was intrinsic to his movement, an event that took place years/decades after he took power is not the best choice. If someone's proposing an analogy between Trump and Hitler, then 1938 for Hitler would correspond to 2021 for Trump, so Trump still has plenty of time.

    @Guy,

    In Tom's defense, the response to his points was ignoring them and doubling down on "Nazis!"

    Some of the points tended towards doubling down on “Nazis!” Claiming that his point were ignored entirely and “Nazis!” was the only response is wildly dishonest.s

    @Jackson

    Of course there's no chance of it being fruitful. One side is literally Hitler! This should be accepted uncritically and without examination! When is Ken going to ban him for hate-speech on this site?

    If there's no chance of it being fruitful, it's because of dishonest people like you. The other side said there are similarities to Hitler, and you present the straw man of “One side is literally Hitler!”

  94. Milhouse says

    How does the obscenity exception make sense anyway? It seems like something that got accepted just because everybody at the time was against porn…

    Scalia pointed out that the first amendment doesn't say "freedom of speech", it says "the freedom of speech". It refers not to freedom in the abstract but to a specific freedom that is well known to the reader, i.e. the freedom of speech that belonged to Englishmen at the time. Anything that wasn't included in that freedom is not protected. Hence the "historic and traditional categories long familiar to the bar".

  95. Milhouse says

    @kazzy

    how did we arrive at the exceptions we do have? Were those baked in from the get go? Or carved out by the legislature and the courts?

    See my answer above.

  96. Milhouse says

    Trump looks patriotic, the media and the left fall all over themselves screaming burning the US flag is a divine right. However if someone wants to burn the Koran, a sermon from on high is given how this person needs to be condemned far and wide for their egregious act of intolerance.

    But nobody calls for this person's arrest. Burning the flag or the koran is a divine right; that doesn't mean it isn't also an egregious act of intolerance that deserves condemnation. Just because you have the right to do something doesn't mean you should do it. Nobody has an issue with Trump's condemnation of flag burners. The issue is solely with his threat (and in his position it is a threat) to subject them to legal penalties.

  97. David Lang says

    Quote:

    Ignoring the just barely plausibly deniably vague 2nd amendment comment, can I use Trump's support of mass deportation, national stop and frisk, torture, and surveillance of Muslims as evidence that he called for violence and discrimination against minority groups?

    well, deporting people whogs, are thos are here illegally is what the government is supposed to be doing (and Obama deported ~2M people from what I'm hearing reported)

    as for your other things, they mostly fall into the same category of reading inferences into his actual statements.

  98. william the stout says

    @encinal – Trump takes power on January 20. If by June he has suspended all opposition political parties and ordered an event similar to the Night of the Long Knives – in which he'd order the immediate execution of 100 or so members of the "alt-right" including, say, Steve Bannon – then we can come back on here and agree that there actually was a similarity between Trump and Hitler. Otherwise, the "Trump is like Hitler" stuff is just another example of wolf crying by the left.

    I'm old enough to remember when Trump first started appearing in the public realm, and ever since I became aware that he existed I haven't been able to stand the guy. Always considered him to be totally full of shit. I would never vote for the guy given the opportunity of a thousand elections to do so. But all this fit throwing by the left and in the media is actually making me almost sort of feel sorry for him. It's not a feeling I enjoy.

  99. Ken in NJ says

    Trump looks patriotic, the media and the left fall all over themselves screaming burning the US flag is a divine right. However if someone wants to burn the Koran, a sermon from on high is given how this person needs to be condemned far and wide for their egregious act of intolerance

    Koran burning IS an egregious act of intolerance. It's also your right to do it if you wish.
    Flag burning is also an egregious act of intolerance. It's also your right to do it if you wish.

    Your inability to differentiate between "what you are doing is horrible and you should be condemned for it" versus "what you are doing is horrible and you should be imprisoned for it" is pretty typical among authoritarian flag worshipers.

  100. EA5 says

    @Encinal
    I'd say no because thats not at all what she said. For instance, if she said something along the lines of "Atheists are immoral and shouldn't be trusted because they don't fear god so we need to do something about them," then that could be evidence of intent to discriminate. Simply saying something nice about the majority religion doesn't cut it.

    @David Lang
    Whether or not you believe that the government should round up all illegal immigrants, forcibly relocating 11 million people is inherently violent. You can support it if you like but don't obfuscate exactly what it is you support. The other policies aren't inferences on vague statements but are specific policies Trump explicitly supported on the campaign trail. Again, support torture, stop and frisk, and mass surveillance if you like, but don't pretend that Trump didn't.

  101. Encinal says

    @william the stout

    @encinal – Trump takes power on January 20. If by June he has suspended all opposition political parties and ordered an event similar to the Night of the Long Knives – in which he'd order the immediate execution of 100 or so members of the "alt-right" including, say, Steve Bannon – then we can come back on here and agree that there actually was a similarity between Trump and Hitler. Otherwise, the "Trump is like Hitler" stuff is just another example of wolf crying by the left.

    If he doesn't, that is evidence against "Trump is like Hitler", but "like" != completely identical. As I said, Tom Scharf's own posts suggest that not only is opposing the government's policies in a vigorous manner, such as burning a flag, an unAmerican act deserving criminal sanction, but disagreeing that it deserves criminal sanction is itself unAmerican. This sort of complete foreclosure of political discussion is a central feature of fascism.

    me

    Can I use Clinton declaration that this being one nation under God is a bedrock value of American democracy …

    @EA5

    I'd say no because thats not at all what she said.

    What in the world do you mean? She said:

    I believe that the Court has misinterpreted
    the intent of the Framers of the Constitution and has sought to
    undermine one of the bedrock values of our democracy, that we are
    indeed "one nation under God," as embodied in the Pledge of
    Allegiance to the flag of the United States of America.

    That's a direct quote. She clearly said that "one nation under God" is a "bedrock value of our democracy".

    Simply saying something nice about the majority religion doesn't cut it.

    But she didn't simply say something nice. She said something nice, implied that that something nice is somehow unique to the majority religion, and did so in support of the thesis that the majority religion should be given special preference.

  102. EA5 says

    @Encinal
    My understanding of Clinton's phrase is that it was said in the context of the debate about the phrase "under god" in the pledge of allegiance (http://www.debgod.com/2015/10/11/hillary-clinton-in-2002/). So if the view is that having that phrase in the pledge represents an explicit endorsement of religion by the government and so it is definitionally discriminatory against atheists, then I see how it could be an endorsement of discrimination.

    That being said, my point about Trump was that he has explicitly endorsed violent and discriminatory policies against minority groups. That makes the debate over exactly what is meant by "second amendment folks" or whether or not he was attempting to incite violence at his rallies moot. Parsing specific statements he made at rallies to find the hidden meaning in his ramblings is beside the point because he directly advocated for using the state to do violence to minority groups.

    Though I'm actually pretty sympathetic to the idea that it is wrong for the pledge to explicitly endorses religion, I don't think its fair to interpret Clinton's statements as a call for violence or other discriminatory acts against athiests

  103. Tom Scharf says

    Good luck finding where I said "opposing the government's policies in a vigorous manner, such as burning a flag, an unAmerican act deserving criminal sanction". In fact I stated the exact opposite.

    The reason I read this blog is because I have a very strong first amendment belief (as I suppose most readers do).

    The point of my post(s) is an observation that the media/left's response to flag burning is long on law, and short on condemnation that is inconsistent with their response on things like Koran burning. Perhaps my observation is incorrect.

    Trump is half bozo the clown, half insightful genius. Making the usual suspects have a hissy fit about how unpatriotic behavior must be protected using a 10 second Twitter post is Trump winning. Full stop. While you are at it, take a position on how a $60K/year elite liberal college taking down the American flag is not objectionable.

    Want to win? Try "I don't care if it's legal, it's disrespectful". No need to remind everyone constantly you are against legal sanctions, they won't happen, Trump can't make it happen.

    If you want to effectively counter Trump, start by assuming Trump and the people he has around him are intelligent effective communicators. Please interrupt your rolling on the floor laughing fit by checking the election results. Stop shooting yourself in the foot when Trump hands you a loaded gun.

  104. Encinal says

    @EA5

    Whether or not you believe that the government should round up all illegal immigrants, forcibly relocating 11 million people is inherently violent.

    The term "violent" is generally not understood to refer to legal processes. While government actions are literally violence, if you're going down that road, then the fact that Trump advocates violence is completely unremarkable. Any candidate who isn't an anarchist supports violence.

    That being said, my point about Trump was that he has explicitly endorsed violent and discriminatory policies against minority groups. That makes the debate over exactly what is meant by "second amendment folks" or whether or not he was attempting to incite violence at his rallies moot.

    No, assassination is completely different from deportation.

    I don't think its fair to interpret Clinton's statements as a call for violence or other discriminatory acts against athiests

    She's definitely calling for discrimination. And if deportation is "violence", then so is taking tax money. And so is forcing atheists to send their children to public schools. On top of that, there is a large amount of violence against atheists that Clinton is implicitly endorsing and abetting.

    @Tom Scharf

    Good luck finding where I said "opposing the government's policies in a vigorous manner, such as burning a flag, an unAmerican act deserving criminal sanction". In fact I stated the exact opposite.

    You at the very least implied that this is the viewpoint of Trump supporters. If you're going to say that speaking up against censorship is "bad optics", it's rather hard to say that we're not disturbingly far along the slippery slope to fascism.

  105. Deplorable Kell says

    If burning the American flag is said to be "free speech", so is burning the koran!
    I have found they make GREAT kindling…

  106. GuestPoster says

    Burning the Koran IS free speech. Why do so many anti-flag-burning folks refuse to see that the left understands that? It's exactly identical to burning the flag from a legal point of view. And it pisses just as many (or more) people off from a moral/ethical point of view. It's an example of 'just because you CAN do something doesn't mean you SHOULD do something'. There aren't many decent people burning the US flag as part of a protest. There are even fewer burning the Koran as part of a protest. They are, by and large, jerks – as are those who suggest that burning the Koran is a good idea. But they still have the right to do so. One of America's most sacred rights is to be a butt munch.

    Also, remember folks: those who are most fervently against burning the flag, and who most routinely call out for harsh punishments for flag burners, will be the largest fraction of those who, on July 4, use flag-plates to hold their hamburgers and hotdogs and flag-napkins to wipe food stains off their mouths.

    Burning = bad. Cleaning up food = good.

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