The Instigator
ReadTheConstitutionPlease
Con (against)
Losing
0 Points
The Contender
lannan13
Pro (for)
Winning
13 Points

Resolved, that desecration of the American flag should be illegal.

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Post Voting Period
The voting period for this debate has ended.
after 3 votes the winner is...
lannan13
Voting Style: Open Point System: 7 Point
Started: 6/3/2015 Category: Politics
Updated: 1 year ago Status: Post Voting Period
Viewed: 431 times Debate No: 76138
Debate Rounds (4)
Comments (1)
Votes (3)

 

ReadTheConstitutionPlease

Con

The debate will be as follows:

Resolved, that desecration of the American flag should be illegal.

I will be debating for the CON side--that is, I will argue that flag desecration should NOT be ILLEGAL, or it SHOULD be LEGAL. Once we are done, if you would like to challenge me to a devil's advocate debate, where I debate PRO and you debate CON, I will happily oblige.

The first round will be for introductions and rules only. Please do not begin your argument in the first post. After the initial round of introductions, there will be three more rounds. It is up to you and me to use these rounds however we please in order to get our points across; there is no set structure for an introduction or conclusion, though I would advise having both.

For the purposes of this debate, "illegal" shall be defined as "contrary to or forbidden by law, especially criminal law." The United States Constitution is a plan of government not a list of laws, so this debate is NOT about whether flag burning should be constitutional; it's about whether, under the current Constitution, flag burning should be illegal.

If you have any questions, don't hesitate to ask.
lannan13

Pro

I accept.

I now await my opponent's opening arguments.
Debate Round No. 1
ReadTheConstitutionPlease

Con

In the roughly 225 years that the United States of America has existed under the Constitution, perhaps no tenet of American government has been more espoused and more enduring than the fundamental idea of freedom of expression. Enshrined in Amendment I of the United States Constitution, the idea is that the government cannot restrict speech and expression on the basis of disagreeable content. Amendment I reads (emphasis mine):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.

Over the course of American history, as Amendment I has been interpreted by the Supreme Court, several exceptions to the idea of free speech have come up. For example, if speech creates clear and present danger, it can be restricted. The oft-cited instance of this would be shouting “Fire!” in a crowded theater.

Exceptions like the clear and present danger exception has come up, but there is one principle that the Supreme Court has made abundantly clear: the government cannot restrict free expression on the basis of disagreeable content. One way to test whether or not content is the basis for the restriction is to keep the method of expression the same and simply change the content. For example, in the case Snyder v. Phelps, when the Supreme Court ruled 8-1 that Westboro Baptist Church were protected under the First Amendment when they picketed at a soldier’s funeral, Chief Justice John Roberts wrote:

The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. (1)

The opinion makes it clear that the government cannot restrict speech or expression on content alone, for the First Amendment exists for the very purpose of protecting minority opinion, no matter how disagreeable to the majority, from suppression. It is in line with many years of legal precedent at the federal level.

Fortunately, it is not up to speculation what this means when it comes to flag desecration, because the Supreme Court has twice ruled on flag burning as it relates to the First Amendment. In 1989, the cases Texas v. Johnson and United States v. Eichman were both decided by the Supreme Court of the United States. In both cases, it was decided that flag burning (and desecration in general) is expressive conduct that cannot be banned by the United States government. Thus, to make it illegal would be unconstitutional.

The case was perhaps best summed up in Justice Brennan’s majority opinion, in which he explains the Court’s reasoning and cites a wealth of past cases as legal precedent for the decision:

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. See, e.g., Hustler Magazine v. Falwell, 485 U.S. at 485 U. S. 55-56; City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 466 U. S. 804 (1984); Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 463 U. S. 65, 463 U. S. 72 (1983); Carey v. Brown, 447 U. S. 455, 447 U. S. 462-463 (1980); FCC v. Pacifica Foundation, 438 U.S. at 438 U. S. 745-746; Young v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 63-65, 427 U. S. 67-68 (1976) (plurality opinion); Buckley v. Valeo, 424 U. S. 1, 424 U. S. 16-17 (1976); Grayned v. Rockford, 408 U. S. 104, 408 U. S. 115 (1972); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 408 U. S. 95 (1972); Bachellar v. Maryland, 397 U. S. 564, 397 U. S. 567 (1970); O'Brien, 391 U.S. at 391 U. S. 382; Brown v. Louisiana, 383 U.S. at 383 U. S. 142-143; Stromberg v. California, 283 U.S. at 283 U. S. 368-369. (2)

The Supreme Court made the correct decision based on legal precedent when it comes to the First Amendment. But for many, simply citing the Supreme Court’s ruling is not sufficient. There are of course instances where the Supreme Court has been wrong, so it becomes necessary to look at the idea of flag burning from a different angle.

Put simply, banning flag burning to protect an American symbol of freedom and liberty is hypocrisy. The way to respect a flag that stands for freedom and liberty is not to restrict the freedom and liberty of American citizens. Flag burning is seen as a horrible act by society, and rightfully so. Yet, it is contrary to the ideals of America for the country to simply say that because the majority does not like it, it should not be permitted. To do so would be disrespecting the ideals that the flag stands for much more than desecrating the flag does.

It is helpful to examine the flag burning case again by going back to the test presented in Snyder v. Phelps (the Westboro case). The content of the expression must be independent of the reason for banning it. Thus, if a law would seek to ban flag burning but keep legal the burning of other pieces of cloth, it would be 100% content based, which is contrary to the American principle of free speech.

Yet, there is a question that one might ask: what if the United States bans flag burning for other reasons, like the danger that fire poses or the environmental concerns? This is a valid point in that the material that flags are made of today creates a great deal of environmental problems when burned. However, any law seeking to combat this problem should not ban all flag burning; it should ban the act of burning that particular type of fabric. Likewise, a law could be passed forbidding the burning of materials at a certain place for safety reasons, but it should not simply be a ban on flag burning. So, the other issues related to flag burning have alternate solutions.

The United States of America has, arguably, the oldest constitution in the world. Enshrined for close to 225 years is Amendment I, which guarantees freedom of speech, including symbolic speech and expressive conduct. If America is to stay true to its principles, it cannot have a system whereby the majority crushes the rights of the minority simply because it disagrees with the content of the expression that the minority is communicating. True freedom is not about punishing people for desecrating the flag; true freedom is letting people desecrate the flag, letting people with contrary opinions voice their disapproval, letting the flag burners respond, and engaging in this open dialogue. The solution to bad speech is never censorship. The solution to bad speech is more speech. As a nation, the United States was founded on these principles, and now is no time to turn our backs on them.

(1) http://www.oyez.org...

(2) https://supreme.justia.com...

lannan13

Pro

I appoligizes for replying so late as I have been having some personal issues (see other debate's comments section)I also appologize as I have to make this a quick round and may not get to everything, but without further ado let's move on to the debate.

I do respect one's idea and right to the freedom of speech I would like to point out that the Supreme Court's actions on the Act is something of an attrocity and in this debate I will prove why.


P1.The Government should only act to enforce the imperatives of Perfect Duties.

P2.Universal health care does not meet the standard of a Perfect Duty.

C1: Thus, the Government should not act to enforce universal health care.

""Kant's first formulation of the CI states that you are to “act only in accordance with that maxim through which you can at the same time will that it become a universal law... Perfect duties come in the form ‘One mustnever (or always) φ to the fullest extent possible in C’, while imperfect duties, since they enjoin the pursuit of an end, come in the form ‘One must sometimes and to some extent φ in C’" [1]


According to the above we see that Kant establishes two duties of that of the government; Perfect Duties and Imperfect Duties. Perfect Duties are those things of which the government must provide to ensure that the government and that society is fully functional. What are these things you may ask? These things are the simple things ensured under that of the Social Contract that you give up for a Civilized Society (not to kill, rape, steal, etc...). These things are indeed key as we can see that this ensures that of a Minarchy at the minimum. What that means is that the Government is to ensure that the people are safe. Everything else falls into that of the Imperfect Duties. Now note that these things may protect and benefit the public, we can see that if they're not of the Social Contract like ideals that they automatically fall into this category and SHOULD NOT be carried out by the government, but by Private entities.


Any action is right if it can coexist with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone's freedom in accordance with a universal law” [2]


We can see that if the government intervenes on the behalf on the people to infringe on that of an Imperfect duty that they would undermining humanity to achieve their due ends. We can see and must ensure that the Imperfect Duties are carried out by the Private Entites as things like people's health and Private debt is something that is to be delt with by the individual NOT the government. [3] So we can see that there no role of the federal government or the government in general to be able to make any law in this reguards of the ruling what we can see here is that we must let the states decide on this issue themselves as shown once again in our Constitution.


"The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. 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."- Supreme Court Justice William Rehnquist [4]

We can see here that the Supreme Court's Dissenting Opinion has shown and in state that the Court has no right to overrule the laws of what is legal in the majority of the states. Now this Court Case was invalid and in an earlier ruling we can see that in the Supreme Court Case LA V Taxpayers for Vincent and in the case they found that, "the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places." Meaning that the Flag burning and desecration is NOT Constitutional as the First Amendment DOES NOT cover this type of free speech. Not only that, but the case threatens Federalism as the states will gradually work for legalization. This will create less and less resentment over time. For exampe we can see that the Gay Marriage issue vs. the Abortion issue that both were hot topics. The thing is that Abortion was legalized all at one time vs. Gay Marriage's gradual legalization. We can see that the change in the legalization is something that created a huge problem as many people don't find problems with gay marriage, but Abortion to them is dangerous and that's on the grounds of destruction of State's Rights. As I shown earlier in the round that we need to leave this legislative authority to the states. For the Supreme Court was right to strike down the Federal law, but it had NO right to strike down state law. We must realize that the State's Supreme Courts are independent from the Federal Supreme Court and that the State Supreme Court must affect State Law and only state law as the Federal Courts can only affect Federal Goverment. [5]


Sources
1. (http://plato.stanford.edu...)
2. (Lectures and Drafts on Political Philosophy, translated Frederick Rauscher and Kenneth Westphal (in preparation). Relevant contents: "Naturrecht Feyerabend" course lecture, fragments on political philosophy, and drafts of works in political philosophy.)
3. (Johnson, Robert. "Kant's Moral Philosophy." The Stanford Encyclopedia of Philosophy. 2012.)
4. (https://www.law.cornell.edu...)
5. G. Alan Tarr, Judicial Process and Judicial Policymaking, 6th ed. (Stamford: Cengage Learning, 2012), 37 and 139.
Debate Round No. 2
ReadTheConstitutionPlease

Con

ReadTheConstitutionPlease forfeited this round.
lannan13

Pro

All points extended.
Debate Round No. 3
ReadTheConstitutionPlease

Con

ReadTheConstitutionPlease forfeited this round.
lannan13

Pro

All Points extended!

Thank you and please vote Pro!
Debate Round No. 4
1 comment has been posted on this debate.
Posted by TheProgressiveCynic 1 year ago
TheProgressiveCynic
In fact, a SCOTUS case decided this issue already in the on-point Texas v. Johnson decision: https://www.law.cornell.edu...

If somebody wants to argue that destroying the flag is wrong, that is fine, but arguing that it should be illegal would require a Constitutional Amendment to redefine the freedom of speech. Obviously, this is unlikely, meaning that the con side essentially wins be default.
3 votes have been placed for this debate. Showing 1 through 3 records.
Vote Placed by greatkitteh 1 year ago
greatkitteh
ReadTheConstitutionPleaselannan13Tied
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Total points awarded:03 
Reasons for voting decision: Forfeit
Vote Placed by Proving_a_Negative 1 year ago
Proving_a_Negative
ReadTheConstitutionPleaselannan13Tied
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Total points awarded:06 
Reasons for voting decision: Multiple forfeits were made by Con. I give conduct to pro. I also give sources to Pro since they used 5 reputable sources compared to Con's 2. With a lot of Con's claims not using evidence to back them up and being refuted by Pro's I give most convincing arguments to Pro also.
Vote Placed by dsjpk5 1 year ago
dsjpk5
ReadTheConstitutionPleaselannan13Tied
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Total points awarded:04 
Reasons for voting decision: Ff