I had posted this in another thread but decided to put it here. Justin or whoever can delete the old post if they think that's best.

NYC is investigating a case where somebody had burned a Pride flag. I saw this talked about here: 

What does everybody think? Should this be investigated/charged as a hate crime? If we're allowed to burn the American flag why should this be any different? Is burning a symbol as a way to express yourself allowed or not? Should protected classes have unassailable symbols?

I'll move my post here.

Pretty simple, no. It should be treated as vandalism. But I also don't think anything should be a "hate crime". If you can burn the American flag, I think that sets the precedent you can burn any flag. 

Edit: I only said vandalism bc I thought he burned a flag hanging out of the bar. They don't really say if the flag was brought or weird. 

It's free speech if no one's property is harmed and not directed at some non-public figure specifically.  However, this is pretty clearly an act of intimidation (throwing it in front of a gay bar) no different than lighting a cross on fire in someone's yard.  So the crime is intimidation/harassment and really has little to do with burning the Pride flag.

Now if they randomly burn a Pride flag at a KKK rally, then I think that's an expression of free speech and not a crime.  Although, if they burned a cross would that be a crime?

I think the precedent has been set decades ago that burning a flag is "free speech".

posted by gut

It's free speech if no one's property is harmed and not directed at some non-public figure specifically.  However, this is pretty clearly an act of intimidation (throwing it in front of a gay bar) no different than lighting a cross on fire in someone's yard.  So the crime is intimidation/harassment and really has little to do with burning the Pride flag.

Now if they randomly burn a Pride flag at a KKK rally, then I think that's an expression of free speech and not a crime.  Although, if they burned a cross would that be a crime?

Pretty much where I land on it.  It would seem pretty apparent that it's meant to be intimidating (though honestly, at this point, I'm not sure I'd be surprised if it was someone who was just looking to stir up controversy or even by someone gay in order to paint himself as a victim).  The parallel you drew from was the same one that came to mind for me as well.  If someone burned a cross in the street in front of a black family's home, that would obviously be for intimidation as well.

I'm curious, though.  How is it that people so quickly recognized what it was?  If someone set a flag of any variety on fire outside one of the local bars here and threw it down in the parking lot and ran off, I'm betting the flag would have burned up before anyone would have had time to see what it was.  I mean, I know a flag isn't flash paper, but it's hardly a couch, either.  Maybe I'm wrong.  Just seems weird that someone recognized a flag that was on fire at night.

In any case, the burning of the flag itself doesn't matter.  It's the circumstances of it.  Drawing my thumb across my neck in my office alone means nothing.  If I do it while staring down a witness in a courtroom, it's intimidating a witness.

Context matters.

posted by O-Trap

Pretty much where I land on it.  It would seem pretty apparent that it's meant to be intimidating (though honestly, at this point, I'm not sure I'd be surprised if it was someone who was just looking to stir up controversy or even by someone gay in order to paint himself as a victim).  The parallel you drew from was the same one that came to mind for me as well.  If someone burned a cross in the street in front of a black family's home, that would obviously be for intimidation as well.

I'm curious, though.  How is it that people so quickly recognized what it was?  If someone set a flag of any variety on fire outside one of the local bars here and threw it down in the parking lot and ran off, I'm betting the flag would have burned up before anyone would have had time to see what it was.  I mean, I know a flag isn't flash paper, but it's hardly a couch, either.  Maybe I'm wrong.  Just seems weird that someone recognized a flag that was on fire at night.

In any case, the burning of the flag itself doesn't matter.  It's the circumstances of it.  Drawing my thumb across my neck in my office alone means nothing.  If I do it while staring down a witness in a courtroom, it's intimidating a witness.

Context matters.

The 1st ammendment doesnt care about context.

posted by Spock

The 1st ammendment doesnt care about context.

So you're equally cool with a guy drawing his thumb across his throat while staring down a witness?  A burning cross outside a black family's home on the street?  I mean, he's not actively infringing on her rights in that moment.

Is intimidation okay, so long as nothing is ever actually acted on?

Also, the First Amendment does have contextual limits (property lines, for example).

posted by Spock

The 1st ammendment doesnt care about context.

Interpreting the Constitution is all about context.  Without it is how the leftist wolves rip it apart.

posted by majorspark

Interpreting the Constitution is all about context.  Without it is how the leftist wolves rip it apart.

They interpret context when applying the Constitution, but being a "strict constructionist" literally means they consider only the words as written.  "Context" and "Intent" are the pathways liberal justices use to legislate from the bench.