The Instigator
WillSelenus
Con (against)
Winning
5 Points
The Contender
Luharis
Pro (for)
Losing
0 Points

Are there sufficient legal grounds to criminalize flag desecration in the United States?

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Post Voting Period
The voting period for this debate has ended.
after 1 vote the winner is...
WillSelenus
Voting Style: Open Point System: 7 Point
Started: 8/14/2015 Category: Politics
Updated: 2 years ago Status: Post Voting Period
Viewed: 1,064 times Debate No: 78689
Debate Rounds (4)
Comments (14)
Votes (1)

 

WillSelenus

Con

I will be arguing the position that there exist no sufficient legal grounds under current United States jurisprudence to justify a criminalization of flag desecration. Ancillary to that, if my opponent wishes to challenge the current state of jurisprudence, I will also be arguing that flag burning should be permitted on similar but more normative grounds.

Argument on Legality:
1) Statutes criminalizing flag desecration would be in violation of the freedom of speech, which is of course embodied in the First Amendment of the Constitution, and therefore said statutes would be unconstitutional.

2) There exist no sufficient legal exceptions or other grounds which overcome this violation of the freedom of speech.

At present, the strongest argument against my position is that flag desecration may precipitate criminal harm to such a degree that flag desecration may be legally prohibited. This is just a suggestion and in no way do I bind any opponent to such a position.

Have fun with this one. Thanks in advance.
Luharis

Pro

Alright, this should be a fun debate!

Now to start things off, I feel it is necessary to touch upon the very heart of the issue: Is the desecration of a national icon/symbol ever justifiable, and if not, why not.

With this idea in mind, it seems we are prepared to delve into the arguments. I of course will be assuming the burden of proof in my arguments as I shall be challenging the status quotidian established by SCOTUS in the case Texas vs Johnson in the year 1989.

So, the obvious question presents itself, what is flag desecration? The obvious answer of course is the desecration of the flag. The heart of the matter lies here: can we as a people, nay as a nation, nay as Americans, condone the desecration of the Stars and Stripes. I believe the answer to be self evident. We as a nation cannot. To understand why now, we must understand what the flag stand for.

The Flag of the United States stands as a beacon of hope and inspiration to many a people, both in and out of the U.S. It stands as almost a permanent testament to the blood sweat and tears we endured to keep our nation together. By soiling the flag in any way, we are directly insulting, and tormenting all who stood up to protect what it stands for.

At the risk of sounding like a propagandist, i must say, it is truly a vile action to desecrate the flag. To support this, i cite the SCOTUS case, Schenk versus the United States, and it has established that any media deemed harmful to the existence of the nation may be deemed illegal and unfit for the public. Bear in mind that the first amendment of the U.S. has limits. The soiling of a flag promotes many strong emotions from both sides. Those who condone it, and those who despise it. Simply put, a continued tradition of allowing such actions is a sure recipe of all sorts of violence.

To name a few, the obvious clash between the to groups of people may turn violent, the youth may be disillusioned with hostile ideas and may spark internal dissent, and it could even go so far as to spark a breed of criminal, those who declare themselves sovereign of, in their eyes, a weak country. We have already seen to some extent all of these in action.

With my opening arguments in place, i wish the con the very best of luck as I eagerly await their arguments.

Sources:
https://en.wikipedia.org...
https://en.wikipedia.org...
The Constitution of the United States 1st ammendment
Debate Round No. 1
WillSelenus

Con

1) Proponent argues that the United States flag is a special item for various reasons. I cannot deny that many feel this way. Even if granted and even if held by the majority, this is insufficient to justify a legal prohibition on flag desecration.

The First Amendment reads in relevant part: "Congress shall make no law [...] abridging the freedom of speech."

The rights enumerated in the Constitution trump statutes; that is to say that laws which come into conflict with these rights are held to be unconstitutional and therefore unenforceable. Likewise, flag burning qualifies as speech, despite not qualifying as the traditional notion of verbal or written word. This is because the burning of the flag is rightly considered symbolic speech. Texas v. Johnson, 491 U.S. 397, 416 (1989). Symbolic speech is when one transmits a message through non-verbal or non-textual means, such as through action, art, etc. Stromberg v. California, 283 U.S. 359 (1931), generally.

No matter how special some Americans find the flag -- even if their numbers were a majority, a supermajority, or a full consensus -- this does not justify a law banning speech to the contrary. Those who enjoy the liberties of the First Amendment do so regardless of the popularity or infamy of their opinions; rights persist despite the tide of majority opinion. Indeed, one of the express purposes of said liberties was to ensure the protection of the minority's rights against an oppressive majority. Likewise, proponent cites that soiling of the flag insults others. Insult is protected speech. The price of freedom is sometimes discomfort.

2) Schenk is inapposite. In Schenk, an individual was successfully prosecuted for distributing material encouraging others to dodge the draft during World War I. The basis of the Court's decision was that this posed a clear and present danger to the United States during a time of war. I doubt one can articulate such a clear and present danger by flag desecration, given the severity of World War I and the need to mobilize militarily in response to it.

3) Lastly, proponent brings up the possibility of criminality precipitating as a result of flag desecration.

By citing the possibility of criminality, proponent cites the exception to the First Amendment known as fighting words. However, fighting words has only ever contemplated a direct remark aimed at an individual, not a general demonstration. Likewise, speech cannot be considered fighting words on the basis of offensiveness alone. Street v. New York, 394 U.S. 576 (1969). Furthermore, the Courts have already ruled that flag burning is not prohibited by the fighting words doctrine. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990). Lastly, the fact that we don't see consistent criminality in reaction to flag desecration suggests that it does not have a consistent tendency to incite lawless action. This squarely excludes the fighting words exception.
Luharis

Pro

https://www.youtube.com...

(Sorry, i just had to)

In section 3 of the con's argument, a point as made very clear. Freedom of speech currently may be curtailed with fighting words as the con puts it. And these fighting words are a direct remark against an individual. However, there is in fact a set of laws in direct conflict with flag desecration. The United States Flag code. There is only one catch. While the laws stand, they are not enforced. The exact wording is as follows, " Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both." Ergo it is already criminal to soil the flag in any way, albeit it is non punishable under today's laws.. With this in mind, it is time to move on to my case. What is a criminal and what defines criminal activity.

To put it bluntly, a criminal is defined as the dictionary as a nature of work involving crime, and to criminalize is defined as to make punishable by law. And there we have it. In order to make my case i must prove that flag desecration is punishable by law, or at least should be. But thanks to the United States Flag code, we know this already. It is already a crime, but the law goes unenforced. While in practical sense this is the same thing as it being legal, in a technical sense however, it is completely against the law and it has already been criminalized.

I apologize for this shorter argument, i was really busy today with schoolwork.

I wish the con good luck in there response!

Sources:
http://www.usflag.org...
https://www.youtube.com...
dictionary.com
Debate Round No. 2
WillSelenus

Con

First, I wish to clarify a slight ambiguity in proponent's explanation. Proponent speaks of the United States Flag Code, 36 USCS 171, 36 USCS 173-178, as laws which stand as not enforced. I wish to point out that these provisions never contained enforcement mechanisms; they never purported to impose penalties. They are simply a guide for the handing and display of the flag. http://www.usflag.org.... Therefore, it clear that these federal laws were never the basis for punishment.

Proponent stated, "to criminalize is defined as to make punishable by law." I'm unsure of this definition, but in granting it arguendo, consider:

a) The United States Flag Code never made flag desecration punishable by law. Therefore, by the above quoted definition, it was never criminalized by the United States Flag Code.
b) The United States Flag Code, had it instituted punishment by law for flag desecration, would be appropriately preempted by the freedom of speech, which was the basis of the Supreme Court's ruling which overturned flag desecration statutes.
c) The federal statutes and similar state statutes which did institute punishment for flag desecration, such as 18 USCS 700, were held to be in violation of the freedom of speech and therefore unenforceable.

Based on this, and if criminalization of an act or omission requires the act or omission to be punishable by law, then it is clear that flag desecration cannot be considered criminal.

If we grant that laws are laws regardless of whether they are unconstitutional, then we are easily reduced to absurdity. Consider the hypothetical situation where the following statute was passed: "It shall be a crime for any person to associate with an individual of another sex." Upon challenge, this would be found unconstitutional on a myriad of bases, one of which being the freedom of assembly. Suppose that this statute remained on the books, so to speak.

Is it still criminal for any person to associate with the opposite sex? Consider that there can be no legal punishment. The only punishment can occur by illegal action by the state, which would likely be tantamount to criminal abduction and related crimes. Suppose that two individuals of opposite sexes, after the law was stricken down, associated, thus invoking an indignant third party to try to intervene to end said assembly. When called, law enforcement would be obliged to aid the two individuals of opposite sexes and preclude the third party from interfering. In this scenario, the action in question retains no quality fairly associated with criminal action, such as opposition from law enforcement, legal arrest, legal punishment, etc. The most telling point is that law enforcement would indeed be obliged to support such action. This is not characteristic of criminal activity. (As a further absurdity, would the law enforcement, by aiding the associates, therefore commit the inchoate crime of aiding and abetting the "illegal" association?)
Luharis

Pro

I am sorry, but I am unable to post an argument t for this round, I am bogged down with school work and will probably be up until way past midnight. I am very sorry for this.
Debate Round No. 3
WillSelenus

Con

Please, don't be sorry. Schoolwork is more important. I'm just grateful that you took the time to have this debate with me. (Especially since no one was taking it.) It's a topic that's become very relevant and very polarized lately.

I'll wait for your last round if you're able, and if not, then thanks again for taking the time.
Luharis

Pro

First off, I would like to thank WillSelenus for understanding my situation, and be kind enough to allow me the opportunity continue my debate.

As it is the last round, i will not be presenting any new evidence, i shall merely restate my arguments.

1. As the flag is a key piece of american heritage, it would be wrong and immoral to desecrate such an important icon.

2. As it was previously illegal, it therefore stands that there is just cause to make it illegal

Looking back, i feel as though i failed as the Pro, as it is my job to uphold the Burden of Proof.

I would like to once again thank the con for his strong arguments, and courteous nature.
Debate Round No. 4
14 comments have been posted on this debate. Showing 1 through 10 records.
Posted by Luharis 2 years ago
Luharis
This is how i felt after reading con's round 3.

https://youtu.be...
Posted by Luharis 2 years ago
Luharis
I have to admit, i grasping at straws here looking for a solid argument
Posted by WillSelenus 2 years ago
WillSelenus
I wrote and wrote and wrote and never bothered to check my own set limits on the debate. I just had a lot of fun trying to cut down thousands of words, haha. Remind me next time to leave the debate character limit on maximum.
Posted by WillSelenus 2 years ago
WillSelenus
Good luck, and thank you for taking up the proponent side. Have fun; this is a great topic.
Posted by Luharis 2 years ago
Luharis
I wish you good luck!
Posted by Luharis 2 years ago
Luharis
very well, i shall post my arguments in the first round
Posted by WillSelenus 2 years ago
WillSelenus
I'm new to this site, so you may know better than me which to do. I'm easygoing and don't have a preference either way. My first instinct would be to say post your argument right away, since I pretty much articulated mine. Like I said, I don't have any strict preferences with that kind of thing. Let me know what you think.
Posted by Luharis 2 years ago
Luharis
If i do accept this, should i post my arguments in the first round and leave my last round blank, or just leave the first round blank?
Posted by WillSelenus 2 years ago
WillSelenus
Feel welcome to it. To make it easier, a proponent is free to argue that it should be illegal, even if it currently cannot be prohibited by law.
Posted by Luharis 2 years ago
Luharis
You've got a point there, i may just take the pro side just to have a fun albeit uphill debate.
1 votes has been placed for this debate.
Vote Placed by ModerateLiberalism 2 years ago
ModerateLiberalism
WillSelenusLuharisTied
Agreed with before the debate:Vote Checkmark--0 points
Agreed with after the debate:Vote Checkmark--0 points
Who had better conduct:--Vote Checkmark1 point
Had better spelling and grammar:--Vote Checkmark1 point
Made more convincing arguments:Vote Checkmark--3 points
Used the most reliable sources:Vote Checkmark--2 points
Total points awarded:50 
Reasons for voting decision: Sources: Pro integrated sources in the form of links more actively into the debate, but Con was far more effective regarding reference to statutes and SCOTUS cases, which I felt were a huge boon to his arguments (this is a legal case, and citing legal precedent and current statutory law is an imperative component of winning a jurisprudential debate). While I take pity on Pro for not having enough time to fully establish a case, I feel as though he was losing from the beginning. Con concisely and satisfactorily rebuts all of Pro's point in his R2. People hate flag burning, but that's not relevant to the first amendment. Schenk v United States is inapposite. Flag burning is an untargeted form of demonstration, which fails to satisfy SCOTUS standards for "fighting words" (though I'm more familiar with Brandenburg v Ohio, establishing the standard of "imminent lawless action"). Con handles Pro's final attempt at upholding the BOP (which seems to be circular logic) well enough f