At SFSU, Burn US Flag = Protected Speech; Step on Hamas Flag = Inciting Violence

Parent Cafe
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<p>“At a public university, stepping on a flag—even burning an American flag—is without question a constitutionally protected act of political protest,” FIRE Vice President Robert Shibley said. “The right to protest is at the very heart of the First Amendment, and means nothing if only inoffensive expression is permitted.”</p>

<p>The College Republicans’ “offense” took place on October 17, 2006, when they held an anti-terrorism protest in SFSU’s Malcolm X Plaza. During the protest, several members of the group stepped on butcher paper they had painted to resemble the flags of Hamas and Hezbollah. Unbeknownst to the protestors, the flags they had copied contain the word “Allah” written in Arabic script.</p>

<p>On October 26, a student filed a formal complaint with the university against the College Republicans. By December, Director of the Office of Student Programs and Leadership Development (OSPLD) Joey Greenwell notified the College Republicans in an e-mail that the complaint accused them of “walking on a banner with the word ‘Allah’ written in Arabic script,” which led to “allegations of attempts to incite violence and create a hostile environment” and “allegations of actions of incivility.”</p>

<p><a href=“http://www.thefire.org/index.php/article/7718.html[/url]”>http://www.thefire.org/index.php/article/7718.html&lt;/a&gt;.&lt;/p&gt;

<p>Have we heard from CAIR yet? We are starting to sound like the Danes after the cartoon flap last year.</p>

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<p>Well, if they’ll march right back and step on “Jesus”, this might be of greater interest. </p>

<p>“Unbeknownst to the protestors” doesn’t cut it.</p>

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<p>Well actually, it isn’t a crime to ‘step on the word Jesus’. It isn’t nice, but no one is gonna go to jail or get sued over it. </p>

<p>I’m sorry. But we don’t have the same stringent laws about the printed word as does say…Saudi Arabia, Yemen or Syria…etc. And I see no need to import those laws or rules. They certainly show no tolerance to other religions in their countries…try smuggling a Bible into Saudi to get the full effect of this point.</p>

<p>So yeah…as unseemly as it is, imho it’s okay to walk all over the name Allah or Jesus or any other God… That ‘it’s a free country’ knife cuts both ways.</p>

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<p>Isn’t the whole point of burning and desecrating flags to create a hostile enviroment? Would it have really made any difference to the complaining student or the administration whether the flag had Allah written on it or not? I imagine their response would have been the same -it’s okay to denounce the USA but not the world of islam. Maybe people are just scared and intimidated by the religious fervency.</p>

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<p>Yeah, I’ve gotta to go with First Amendment rights on this one too. It offends me when people use the Lord’s name in vain, but I’m not going to try to prosecute anyone over it.</p>

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<p>No, I think “unbeknownst to the protestors” is part of the heart of the issue. Incitement usually requires intent, or at least reckless disregard of risk. If they knew they were stepping on the word “Allah”, presumably they may have known that they were at least running the risk of seriously offending people with no particular tie to Hamas or Hezbollah, and getting into an area that might provoke a violent response. So maybe they intended that. But if it wasn’t “beknownst” to them, then they couldn’t possibly have intended to incite Muslims. </p>

<p>That kind of issue gets set for trial a lot in our system, even though the possibility of having to go to trial certainly chills the exercise of free speech rights. </p>

<p>I think the students were clearly within their First Amendment rights, and I predict that if SFSU attempts to impose any discipline on them it will lose the ensuing lawsuit. But that hasn’t happened yet. The worst thing that has happened is that the relevant dean didn’t ditch the complaint yet, probably because he’s trying to please everyone, to give the complainants a satisfying public forum in which to express their outrage and hurt, and to diffuse responsibility for the outcome. Gutless, yes, but understandable. TheFire.org is doing a little organizing and agitating, too, but I’m not going to get riled up about this case until the university actually does something more than giving the kids a good talking-to about cultural sensitivity.</p>

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<p>“Would it have really made any difference to the complaining student or the administration whether the flag had Allah written on it or not?”</p>

<p>It makes a VERY big difference. I bet if I have two pieces of cardboard, one that is blank and one that has “Jesus” written on it, and I stomp on them both, I am likely to get differences in response.</p>

<p>What’s so difficult to understand?</p>

<p>Note that this has nothing to do with crime. The Republicans WERE "attempting to create a hostile environment” and they INTENDED to commit "actions of incivility” - that was the whole point. So someone decided to call a diamond a diamond. What’s the big deal?</p>

<p>A good talking-to makes sense to me; maybe send them to bed without any supper.</p>

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<p>I believe there are two issues here. One is free speech. The other is intimidation. A university has an obligation to maximize free speech while minimizing intimidation of others. Sometimes the issues conflict and the “right” answer is not so clear cut.</p>

<p>If this is the whole story, then I believe the group was well within its rights to stomp on those flags regardless of what they said. Certainly, having the word “Allah” on the flag makes no difference one way or the other in a society that truly values free speech. </p>

<p>There are circumstances, however, in which I would go the other way with my opinion. For instance, if there had been attempts to frighten or hurt a Muslim minority, then this action could be seen in the same light as burning a cross on someone’s lawn. If the demonstration was aimed directly at passing students who happened to be Muslim, I might decide that the univerisity had the obligation to keep those students safe, and that this obligation outweighed free speech.</p>

<p>Remember that the First Amendment applies to governmental suppression of free speech. An employee has no right to bad mouth his employer’s products, for instance. She can be fired for that perfectly legally. A college has no obligation, other than a moral and values based one, to allow free speech. Certainly, many colleges do not and make no secret of that.</p>

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<p>But just because someone is offended by the way someone else expresses their opinion about something doesn’t mean they are creating a hostile environment. Inciting people to violence is quite a different thing. I find the work of artist Andres Serrano offensive and it incites me, but that doesn’t mean he is not allowed to express himself the way he chooses. (He’s famous for the crucifix in urine - not sure how that passes as art).</p>

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<p>If “SFSU” stands for San Francisco State University, as I believe it does, then it has a legal, not just moral, obligation to allow free speech. For most practical purposes in First Amendment law, public universities are governmental entities.</p>

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Maybe it made a difference or maybe the stomping sans the word would have had the same effect. I don’t really know the answer.</p>

<p>Although the stomping is exercising freedom of speech I think it’s a poor way to get one’s point across. I’d like to see more intelligent approaches.</p>

<p>Regardless, I think the OP’s point wasn’t one of freedom of speech as much as reaction to desecration of the US flag versus the the other flags.</p>

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<p>Vango: I often read about people being “offended” when what should really be said is that they are “frightened.” I could take offense, for instance, at being called a coward or some other name on this message board. But I wouldn’t be afraid. On the other hand, near a hostile crowd and having someone hurl that epithet at me might cause me to be afraid, indeed. Context is important. The meta-context for some minorities suggests they may have good reason to be afraid of the majority.</p>

<p>JHS: I’m not an attorney, and I’m certainly not a Constitutional law expert. It is my understanding, however, that there is a limit to the protection of “free speech” regardless of whether the entity in question is supported by the government. For instance, I threw a kid out of my class once when, in a heated argument, he called a young lady the C word. He was also screaming at the top of his lungs. I couldn’t have that, and there were no repercussions for anyone except the young man in question.</p>

<p>As I’ve said, I lean toward the free speech argument here, absent any other facts that could make me decide that students were being frightened. Having said that, I don’t think the right of free speech is unlimited, even in case law.</p>

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<p>“But just because someone is offended by the way someone else expresses their opinion about something doesn’t mean they are creating a hostile environment.”</p>

<p>Yeah. But the intent was clear. (I suspect that if they had known that Allah was on the flag, they would have been all the merrier.)</p>

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I don’t know whether the OP meant that, or whether he was just passing along the contents of a right-wing website. But this is a perfect example of right-wing rhetorical strategy.</p>

<p>The Supreme Court (and pretty much every court) has held that flag desecration statutes are unconstitutional. What that means is that the simple act of taking an American flag and stepping on it, burning it, or turning it into leisurewear cannot be made a crime, because of the expressive potential in a lot of the nasty things people do to American flags. That does NOT mean that every act of desecrating an American flag is permissible regardless of the circumstances. There are probably circumstances where desecrating an American flag could legitimately be punished under an “incitement” theory, but you would have to have pretty clear, nonstandard facts and intent to incite. It is in the nature of incitement crimes that it is not a complete defense that the accused is using speech that would be constitutionally protected in other contexts. </p>

<p>In the final analysis, I doubt there is any legally relevant difference between an American flag and a Hamas flag. But no one has attempted to criminalize desecrating a Hamas flag per se. The whole (somewhat far-fetched) issue here is whether the protesting students were trying to intimidate or to incite Muslims by stepping on the Name of God in those particular circumstances. Almost certainly not, and no one has concluded that they did.</p>

<p>But TheFire.org is trying to get mileage out of turning this into the slogan “You can burn an American flag, but you get punished for stepping on a Hamas flag.” It’s just cheap demagoguery, and has nothing to do with the actual law or actual facts.</p>

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<p>Tarhunt: I was at one point a Constitutional Law expert, but my knowledge isn’t all that current. The First Amendment gets molded to a lot of circumstances, especially in a public school context. Even though it applies to public schools as to all governmental entities, everyone recognizes that it is important to maintain classroom discipline and order, and that just because a kid uses words in his temper tantrum it doesn’t mean he is exercising First Amendment rights or that he can’t be disciplined for it. And if a kid disrupts a class by giving a speech that would be perfectly appropriate at a political convention, he can be disciplined for that, too, notwithstanding his exercise of First Amendment rights.</p>

<p>At the college level, administrators get somewhat less leeway from the courts. It’s not that maintaining order and discipline aren’t valid goals, it’s just that no one actually does much order and discipline maintenance most of the time, and you can’t just pull it out to shut down protests you don’t like.</p>

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<p>Reading about the incident, I do not get the idea that it was “an attempt to incite violence,” rather a poorly chosen device to deal with the frustration those students feel with terrorist organizations like Hamas. Therefore, while one can argue that there are better ways to get one’s point across, I still think this falls within First Amendment rights. More often these days when a student group attempts to bring in a speaker associated with right-wing politics, the protesting that goes on borders on inciting of violence (that incident at Columbia last year comes to mind). However, since most academic institutions lean to the left, little ever comes of it.</p>

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<p>They were "attempting to create a hostile environment” and they intended to commit "actions of incivility”, and they succeeded. </p>

<p>Didn’t see any “attempt to incite violence”, but I wasn’t there. At any rate, the university didn’t make any such claim; a complainant did.</p>

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<p>“Attempting to create a hostile environment, etc.” were the words of the complainant. I don’t think walking across a piece of paper qualifies. If so, then almost anytime a group holds a protest on campus, they would be creating a hostile environment for those that disagree with their politics.</p>

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<p>Fair enough. But what’s the big deal here? Someone made a complaint, the complaint was forwarded to the parties that were alleged to have committed the act. It was investigated and passed to the relevant authorities who may or may not act upon it. The Republicans could say, “sorry, we didn’t mean to stomp on the name of your God, and we really didn’t mean to offend,” or they could them to F off, or make a big federal case over it.</p>

<p>But, as regards the University, isn’t that what you’d WANT them to do?</p>

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<p>OK, I posted the report to highlight the deference accorded Muslims in a sitution like this. A protestor can burn our flag and I am not going to file a report, claim or lawsuit and I don’t think anyone else should, even though I am offended by what the act implies. Although I am a conservative I think efforts to pass a constitutional amendment against flag burning are demagoguery and a waste of time. Proponents of an amendment are trivializing the values represented by Constitution. The proper response of this univeristy in a case of flag burning would be to tell any complainant, sorry but we believe in freedom of expression in this country. Can we agree on that?</p>

<p>But all that changes if a Muslim flag is involved. A complaint is lodged, charges filed, hearings will be held and maybe some sort of reprimand or sanction, as yet unspecified, may be leveled. Freedom of expression only applies to certain parties, it would appear. Remember we are talking about the flags of Hamas and Hezbollah. The rights and feelings of terrorist organizations are to be accorded more respect than those of the citizens of the US? </p>

<p>SFSU is the campus that tolerates anti-semitic expressions like the following described in an email from the director of the Jewish Studies Program about four years ago:</p>

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<p>That seems to me, neither a Christian, Jew or Muslim, as orders of magnitude more offensive, threatening and likely to result in violence, but the administration did nothing to intervene.</p>

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<p>Are there instances recently when that was the case? I am just asking for my own edification, not trying to be argumentative.</p>