“[N]othing in the text of the Constitution, or in the eighteenth-century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech...” - Judge Richard Posner

Yeah,but what would Judge Judy say?

Judge Richard Posner

Interesting that you would quote someone like Posner as a source for your dementia.

Judge Richard Posner: ‘No value’ in studying the U.S. Constitution

“I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries — well, just a little more than two centuries, and of course less for many of the amendments),” he wrote. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”

Richard Posner

Abortion

Posner has written several opinions sympathetic to abortion rights, including a decision that held that late term abortion was constitutionally protected in some circumstances.^[20]

In November 2015 Posner authored a decision in Planned Parenthood of Wisconsin, inc., et al. v. Brad D. Schimel striking down regulations on abortion clinics in Wisconsin. He rejected the state's argument that the laws were written to protect the health of women and not to make abortion more difficult to obtain. Accusing the state of indirectly trying to ban abortions in the state Posner wrote, "They [Wisconsin] may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion.

Drugs

Posner opposes the US "War on Drugs" and called it "quixotic". In a 2003 CNBC interview he discussed the difficulty of enforcing criminal marijuana laws, and asserted that it is hard to justify the criminalization of marijuana when compared to other substances. In a talk at Elmhurst College in 2012, Posner said that "I don't think that we should have a fraction of the drug laws that we have. I think it's really absurd to be criminalizing possession or use or distribution of marijuana.

National Security

At the Cybercrime 2020: The Future of Online Crime and Investigations conference held at Georgetown University Law Center on November 20, 2014, Posner, in addition to further reinforcing his views on privacy being over-rated, stated that "If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that's fine.

... Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct," Posner added. "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you."

Posner also criticized mobile OS companies for enabling end-to-end encryption in their newest software. "I'm shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search" he said

Same-sex marriage

In September 2014, Posner authored the opinions in the consolidated cases of Wolf v. Walker and Baskin v. Bogan challenging Wisconsin and Indiana's state level same-sex marriage bans. The opinion of the three-judge panel on the 7th Circuit Court of Appeals ruled that Indiana and Wisconsin's bans on same-sex marriage were unconstitutional, affirming a lower court ruling.[4]

During oral arguments, Wisconsin's Attorney General cited tradition as a reason for maintaining the ban, prompting Posner to note that: "It was tradition to not allow blacks and whites to marry – a tradition that got swept away." Posner claimed that the same-sex marriage bans were both "a tradition of hate" and "savage discrimination".[36] Posner wrote the opinion for the unanimous panel, suggesting the laws unconstitutional under the Equal Protection Clause. The Supreme Court then denied writ of certiorari and left Posner's ruling to stand.

Today, although generally viewed as to the right in academia, Posner's pragmatism, his qualified moral relativism and moral skepticism,[16] and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives.

As a judge, with the exception of his rulings with respect to the sentencing guidelines and the recording of police actions, Posner's judicial votes have always placed him on the moderate-to-liberal wing of the Republican Party, where he has become more isolated over time.

In July 2012, Posner stated, "I've become less conservative since the Republican Party started becoming goofy.

Obama’s Favorite Law Professor (The apple doesn't fall far from the tree)

Eric Posner hates freedom of speech.

The University of Chicago law prof made this clear in an article for Slate in 2012 titled “The World Doesn’t Love the First Amendment.” “Americans,” Posner wrote, “need to learn that the rest of the world — and not just Muslims — see no sense in the First Amendment,” and realize that “they might have a point.”

Posner, son of Judge Richard Posner and a former classmate of President Barack Obama at Harvard Law School, likened the First Amendment to a “dear old uncle who enacted heroic deeds in his youth but on occasion says embarrassing things about taboo subjects in his decline.”

Now Posner has weighed in on freedom of the press. Turns out he’s against that, too.

In the case in question, New York Times reporter James Risen is being ordered by the federal government to name his source for a story about an attempt by the CIA to scuttle Iran’s nuclear weapons program.

This is part of the Obama administration’s alleged “war on whistleblowers.” Risen is being ordered to testify in the government’s case against former CIA hand James Sterling.

Posner, who must be one of Obama’s favorite law professors after he sided with the censors on Benghazi and argued the president could unilaterally lift the debt limit with few consequences, is very much rooting against the journalists.

The prof argues the press has “not earned our trust.” Why, “if the Supreme Court were to create a reporter’s privilege, it would encourage leaks that ought to be plugged.”

Official White House mouthpiece Jay Carney couldn’t have said it better.

There are no prominent powerful conservatives left in America politics.

jones.house.gov/

Walter B. Jones is still in the HOR, and retains his seat on the Armed Services Committee, in spite of Boehner removing him from others. At 73 years old, he still refuses to tow the party line. He's also a member of the Liberty Caucus.

Some people never learn. ;)

“Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”

Flag burning isn't particularly high tech. Even you could figure out how to do it.

I see you are afraid to own up to your apparent worship of a leftist like Posner.

Sucks to be you.

Historical facts are historical facts

The historical facts show Posner to be a a pro-abortion, pro-homo marriage loon, yet you parrot his statements as if they were Gospel.

To be fair, he did get it right on the marijuana question.

The historical facts show Posner to be a a pro-abortion, pro-homo marriage loon

And once again your flee the historical facts regarding the actual meaning and original intent of the First Amendment, gibbering angrily.

Work up whatever minuscule reserve of nerve you might have, and at least try.

Historical facts are historical facts.

Posner: "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you."

Hmmm...where have we heard that type of statement before?

Oh, I know..

And once again your flee the historical facts regarding the actual meaning and original intent of the First Amendment,

The issue has been settled, didn't you get the memo?

By all means, keep up the delusional belief that burning a flag is not protected by the First Amendment.

The issue has been settled, didn't you get the memo?

Quote the "memo."

You've fled in terror each time you've been challenged so far.

"The statute of Nebraska preventing and punishing the desecration of the flag of the United States and prohibiting the sale of articles upon which there is a representation of the flag for advertising purposes is not unconstitutional..." - Halter v. Nebraska, 205 U.S. 34 (1907)

our ken

And Donnie...

Given the sentiments expressed by the court that you highlighted, how is it that prohibiting hate speech is constitutional?

Political speech is protected. Hate speech is not necessarily political speech and can be made for the purpose of creating a disturbance.

If Donald Trump went somewhere and gave a political speech, and a bunch of rabble took umbrage and decided to riot, that does not make the speech of Donald Trump a crime. The rioters commit a criminal act.

"The statute of Nebraska preventing and punishing the desecration of the flag of the United States and prohibiting the sale of articles upon which there is a representation of the flag for advertising purposes is not unconstitutional..." - Halter v. Nebraska, 205 U.S. 34 (1907)

Halter was brought under the 14th Amendment regarding use of the flag in advertising, and not as a case of individual free speech. The court ruled, "we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer."

https://supreme.justia.com/cases/federal/us/205/34/case.html

U.S. Supreme Court

Halter v. Nebraska, 205 U.S. 34 (1907)

Halter v. Nebraska

No. 174

Submitted January 23, 1907

Decided March 4, 1907

[excerpts]

The act, among other things, makes it a misdemeanor, punishable by fine or imprisonment, or both, for anyone to sell, expose for sale, or have in possession for sale, any article of merchandise upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States. It expressly excepted, however, from its operation any newspaper, periodical, book, etc., on which should be printed, painted, or placed a representation of the flag "disconnected from any advertisement." 1 Cobbey's Ann.Stat.Neb. 1903, c. 139.

The plaintiffs in error were proceeded against by criminal information upon the charge of having, in violation of the statute, unlawfully exposed to public view, sold, exposed for sale, and had in their possession for sale a bottle of beer upon which, for purposes of advertisement, was printed and painted a representation of the flag of the United States.

Page 205 U. S. 39

The defendants pleaded not guilty, and at the trial insisted that the statute in question was null and void as infringing their personal liberty guaranteed by the Fourteenth Amendment of the Constitution of the United States and depriving them, as citizens of the United States, of the right of exercising a privilege impliedly, if not expressly, guaranteed by the federal Constitution; also that the statute was invalid in that it permitted the use of the flag by publishers, newspapers, books, periodicals, etc., under certain circumstances, thus, it was alleged, discriminating in favor of one class and against others. These contentions were overruled, and the defendants, having been found guilty by a jury, were severally adjudged to pay a fine of $50 and the costs of the prosecution. Upon writ of error, the judgments were affirmed by the Supreme Court of Nebraska, and the case has been brought here upon the ground that the final order in that court deprived the defendants, respectively, or rights specially set up and claimed under the Constitution of the United States.

It may be well at the outset to say that Congress has established no regulation as to the use of the flag, except that in the act approved February 20th, 1905, authorizing the registration of trademarks in commerce with foreign nations and among the states, it was provided that no mark shall be refused as a trademark on account of its nature

"unless such mark . . . consists of or comprises the flag or coat of arms or other insignia of the United States, or any simulation thereof, or of any state or municipality, or of any foreign nation." 33 Stat. 724, § 5.

- - - - - - - - - -

By the statute in question, the state has in substance declared that no one subject to its jurisdiction shall use the flag for purposes of trade and traffic -- a purpose wholly foreign to that for which it was provided by the nation. Such a use tends to degrade and cheapen the flag in the estimation of the people, as well as to defeat the object of maintaining it as an emblem of national power and national honor. And we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer. It is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject, in their enjoyment, to such reasonable restraints as may be required for the general good. Nor can we hold that anyone has a right of property which is violated by such an enactment as the one in question. If it be said that there is a right of property

Page 205 U. S. 43

in the tangible thing upon which a representation of the flag has been placed, the answer is that such representation -- which, in itself, cannot belong, as property, to an individual -- has been placed on such thing in violation of law, and subject to the power of government to prohibit its use for purposes of advertisement.

Walter B. Jones is still in the HOR, and retains his seat on the Armed Services Committee, in spite of Boehner removing him from others. At 73 years old, he still refuses to tow the party line. He's also a member of the Liberty Caucus.

Some people never learn. ;)

True,but it has mostly been the alleged Republican Party that has made a determined effort to keep him in the background. Have you ever seen him on one of the Sunday political talk shows?

The area where the USMC base named Camp LeJune is located in is in Jones district,and he actually appeared before an assembly of Marines on the base and gave an anti-Iraq invasion speech before the invasion happened,and I read on the web the report from the local paper that said the Marines gave him a standing ovation for doing so. I stood up and gave him a standing ovation myself when reading about it. I have been hoping ever since that he would run for president.

I am guessing that was the only newspaper that wrote about this.

You're liberal,

Thanks! So were Thomas Jefferson,Ben Franklin,and George Washington.

"If Donald Trump went somewhere and gave a political speech, and a bunch of rabble took umbrage and decided to riot, that does not make the speech of Donald Trump a crime."

Depends on the content and the intent of that speech.

But burning the flag is done intentionally to provoke a reaction, to incite an immediate breach of the peace, or to incite imminent lawless action.

Political speech is protected. Hate speech is not necessarily political speech and can be made for the purpose of creating a disturbance.

I think that even you will admit that is one VERY blurry line.

But burning the flag is done intentionally to provoke a reaction, to incite an immediate breach of the peace, or to incite imminent lawless action.

Burning a flag is done as a form of political expression and all you just said has been repeatedly rejected by the U.S. Supreme Court.

Frequently, the very purpose of protected political expression is to provoke a reaction. If someone decides to indulge themselves in a breach of the peace or other lawless action, they are the one committing the criminal action.

If a nitwit at a Trump rally was incited to some nitwittery, they did not arrest Donald Trump and remove him from the venue.

I think that even you will admit that is one VERY blurry line.

It certainly can be. But if someone is arrested for burning a flag, it is almost guaranteed that his attorney will argue that it was political expression. It would be a real challenge to show that there was no political intent.

A law prohibiting flag burning per se, prohibits political expression.

Hate speech has a nebulous character. Nowadays, it seems snowflakes call anything they do not like hate speech, and they run off to their safe space.

You're liberal, Thanks! So were Thomas Jefferson,Ben Franklin,and George Washington.

lol

They were classical liberals.

You're a leftist liberal 75 percent of the time.

You're a leftist liberal 75 percent of the time.

Only from the POV of a dogmatic loon.

As I keep saying over and over,and over,and over......,We are either ALL free,or NONE of us are free.

It is such a simple concept I honestly can't understand how anyone could not understand it. A government that has the authority to monitor and punish MY thoughts,words,and political deeds,also has the authority to monitor and punish YOUR thoughts,words,and political deeds.

And if they can,they will. It is the nature of ALL governments EVERYWHERE to seize all the power they can seize in order to stay in power. Free Speech is the most important tool we citizens have to use to prevent that from happening here.

What's it going to take -- someone getting injured or killed burning the flag?

We are either ALL free,or NONE of us are free.

No problem with that.

I just disagree with you that Floyd Mayweather should be on the woman's olynmpic boxing team.

That doesn't make him any less equal and free if he isn't allowed.

"A law prohibiting flag burning per se, prohibits political expression."

States ban cross burning and there's no constitutional crisis. Flag burning can be banned for the same reason -- the intent is to provoke a reaction, to incite an immediate breach of the peace, or to incite imminent lawless action.

"I think flag burning is protected "speech'.

Then our laws against hate speech and sexual harassment should be repealed. Time for everyone to suck it up.

Then our laws against hate speech and sexual harassment should be repealed. Time for everyone to suck it up.

If you don't threaten to kill someone. You should be able to say what you want. So i'm ok with that.

Remember Scalia voted to allow flag burning too.

If they made it illegal to burn flags. That wouldn't bother me to much either. Just saying.

'No president is allowed to burn the First Amendment’

The president president can by executive decision, and he has the guns to back him up.

There are people and philosophies in this world that deserve to be hated. Giving voice to that hatred is not to be prohibited. There are worse things than hate speach. One of them is to succumb to compliance and repression by not pointing it out.

president can [burn the First Amendment] by executive decision

That's treason and Trump should be impeached, tried, and beheaded by ISIS McCain, if he does it.

It would require a Constitutional amendment to make America, like North Korea.

Apple and oranges. Burning the American flag is not the same as a political editorial or a political speech. So you can stop trying to convince me that there's no difference.

What's it going to take -- someone getting injured or killed burning the flag?

According to the court, it is protected just the same. If you are offended, and you injure or kill someone, you will be the one going to prison.

States ban cross burning and there's no constitutional crisis. Flag burning can be banned for the same reason -- the intent is to provoke a reaction, to incite an immediate breach of the peace, or to incite imminent lawless action.

That is the law as you want it to be. The law that is, is the law as stated by the U.S. Supreme Court.

The have been a few attempts to amend the Constitution to make desecrating the flag a crime. One attempt passed in the House but failed in the Senate.

Another Scotus opinion can change it, an amendment can change it, a blog post cannot.

The president president can by executive decision, and he has the guns to back him up.

No president is legally authorized, but he has the power if the army will obey the unlawful order. The Lincoln administration used the army to smash printing presses.

No president is legally authorized, but he has the power if the army will obey the unlawful order.

Legally means nothing to Obama & Company. They've already committed enough crimes to be hung and gotten away with it.

"That is the law as you want it to be."

That is the law if it were consistently applied. If the intent and the result of the action incites an immediate breach of the peace it should not be constitutionally protected.

You're so focused on the action you're ignoring the consequences. Worse, you fault those offended by the action.

"It would require a Constitutional amendment ..."

Nope. Just call it hate speech. Hate speech is not protected under the first amendment. Game over.

Just call it hate speech. Hate speech is not protected under the first amendment.

Really?

In R.A.V. v. City of St. Paul, (1992) the issue of freedom to express hatred arose again when a gang of white people burned a cross in the front yard of a black family. The local ordinance in St. Paul, Minnesota, criminalized such racist and hate-filled expressions and the teenager was charged thereunder.

Associate Justice Antonin Scalia, writing for the Supreme Court, held that the prohibition against hate speech was unconstitutional as it contravened the First Amendment. The Supreme Court struck down the ordinance.

Scalia explicated the fighting words exception as follows: “The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey”.

Because the hate speech ordinance was not concerned with the mode of expression, but with the content of expression, it was a violation of the freedom of speech. Thus, the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence.

The opinion noted "This conduct, if proved, might well have violated various Minnesota laws against arson, criminal damage to property", among a number of others, none of which was charged, including threats to any person, not to only protected classes.

In 2011, the Supreme Court issued their ruling on Snyder v. Phelps, which concerned the right of the Westboro Baptist Church to protest with signs found offensive by many Americans.

The issue presented was whether the 1st Amendment protected the expressions written on the signs. In an 8–1 decision the court sided with Phelps, the head of Westboro Baptist Church, thereby confirming their historically strong protection of hate speech, so long as it doesn't promote imminent violence.

The Court explained, "speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community' or when it 'is a subject of general interest and of value and concern to the public."

Game over.

"Thus, the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence."

That's what I've been saying about burning the flag. If the intent and the result of the action incites an immediate breach of the peace it should not be constitutionally protected.

Hate speech is not protected under the first amendment

Wrong. It's the stuff you don't like that really needs that protection.

Hate speech is not protected under the first amendment.
Wrong.

Right.

"Thus, the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence."

Halter was brought under the 14th Amendment regarding use of the flag in advertising, and not as a case of individual free speech.

Dear Shit for Brains:

Advertising is speech.

"Thus, the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence."

You got to give him credit. He excels at foot shots.

If the intent and the result of the action incites an immediate breach of the peace it should not be constitutionally protected.

"IF".

That is the law if it were consistently applied. If the intent and the result of the action incites an immediate breach of the peace it should not be constitutionally protected.

No. If one engages in political speech, as did Donald Trump, and some asshole or group of assholes decide to breach the peace or engage in riotous behavior, as some assholes did, it is the assholes who have committed the criminal offense. The speaker cannot be held criminally liable for what some hotheaded, or intolerant asshole will do in response to protected free speech.

If Gary Great wears a MAGA hat, and Arnie Asshole punches him in the face, Gary has committed no criminal offense, Arnie has.

I do not fault anyone for being offended. I fault them for responding with unlawful actions such as disturbing the peace, committing assault, or rioting.

Dear Shit for Brains:

Advertising is speech.

Advertising using the U.S. flag on a beer bottle is not protected free speech.

The court clearly stated: "we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer."

Which part are you having difficulty understanding. It's the court opinion YOU cited. You should have tried reading it, shit for brains.

Legally means nothing to Obama & Company.

It is just the difference between being legally authorized and simply usurping authority where legal authority is lacking.