# Thought Piece:  Burning the Koran is a Form of Protected Speech



## Marauder06 (Dec 4, 2012)

*The "General Petraeus thread *spawned a lengthy and very interesting sidebar discussion concerning free speech and its consequences. At issue is 1) whether an inciteful act, such as desecrating the Koran, is free speech; and 2) even if it is free speech, whether or not the person doing it should be held responsible for the often-violent reaction to the act.

I decided that in order to continue this discussion without (further) hijacking the Petraeus one, that we might open the subject for debate, ShadowSpear style. The rules for this exercise are below. I hope many of you who were active in the Petraeus threus" threadead will sign up to discuss it here as well. I will also tell you that if you took a specific position on this subject in the other thread, I will most likely assign you to argue the _opposite_ point of view for this exercise.

Also, I had a little trouble coming up with the points of view for this topic, if any of you can think of better ways to word them, let me know.



> POV 1: Burning the Koran is not protected speech. It is an inciteful act, with predictable results. The act should not be covered by First Amendment protection, and persons who commit these kinds of acts should be held criminally liable if they spawn destruction or violence.


 


> POV 2: Desecration or destruction of the Koran, while reprehensible, is nonetheless protected free speech. People who choose to exercise this right should be free from fear of prosecution or violent reaction directed towards them.


 

*Important details*:
1)If you want to participate in this exercise, your first post in this thread should be, "I'm in" or something related. After that, I will assign you to one of the two points of view above. You can request to be assigned 1 or 2, but that doesn't mean you'll get it.

2)You are not allowed to provide an opinion directly related to the topic of this thread unless you have previously been assigned a point of view (see below). If you comment on something related to the topic without being assigned a point of view first, I'm just going to delete your post. Sidebar commentary (i.e. "peanut gallery" comments) are allowed from people not participating in the debate, but providing your own opinion or substantively commenting on the posts of others participating in the debate is not allowed unless you, too, are in the debate as defined above.

3) Me assigning points of view means that you may have to debate this topic from a point of view that is different than what you currently believe. THAT IS THE POINT OF THIS EXERCISE. I assign points of view so not everyone chooses one over the other and to keep the level of outside commentary down. I also do it to help people think about an argument from the "other" view.

4) You do not need to caveat your posts with something like, "I don't believe this in real life" or words to that effect. That immediately undermines your argument and taints everything you say afterwards. If you do that, I'm going to delete your post. Act like you believe it; you'll do better research and make a better argument. There will be plenty of time to say what you really believe later.

5) We have done several of these exercises in the past, and people learn a lot. So keep it civil, keep it fun. There are no "winners" or "losers" in this exercise, we are all winners due to the education we receive from being exposed to well-researched and well-argued points of view on this topic.

... and with that, game on!

POV 1
dirtmover
CDG
Marauder06

POV 2
Skrewzloose
LOST
SOWT


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## SkrewzLoose (Dec 4, 2012)

Seeing as how I was rattling the cage in the other thread, I'm in on this one.


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## Marauder06 (Dec 4, 2012)

Skrewz- POV 2


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## LimaOscarSierraTango (Dec 4, 2012)

I don't know if I can allow myself to pass on this one with how active I was in the other. LOL  Unfortunately, I may be all out of argument at this point, but we will see what POV I am assigned and who argues what.


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## dirtmover (Dec 4, 2012)

I'm in


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## CDG (Dec 4, 2012)

I'm in.


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## Marauder06 (Dec 4, 2012)

LOST, Skrewz, CDG, dirty- check the initial posts for your assignments.  Good luck.


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## SkrewzLoose (Dec 4, 2012)

What the dick, I knew this would happen.  Making me think outside my comfortable little box...


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## DA SWO (Dec 4, 2012)

I am in, POV #2


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## Roguish Lawyer (Dec 4, 2012)

OK so I know I'm new, but I can't help it.  Since there is a correct answer to the questions as posed, may I suggest that you change "is" to "should be"?   /rimshot


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## SkrewzLoose (Dec 4, 2012)

Fuck, we're all in for it now...


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## LimaOscarSierraTango (Dec 4, 2012)

Marauder06 said:


> LOST, Skrewz, CDG, dirty- check the initial posts for your assignments. Good luck.


 
I am just going to quote the LT's comment in the last thread.    I think that post made the most sense out of all of them combined.


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## SkrewzLoose (Dec 4, 2012)

Well, I'll keep the first one simple while I dig more.

Actions such as these don't have to be "protected".  The text of the 1st amendment states: 


> 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 peaceably to assemble, and to petition the Government for a redress of grievances.




Congress hasn't made any laws to prevent actions like these from happening.  So, while these actions may be based in ignorance, they are not illegal.  No harm, no foul.


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## LimaOscarSierraTango (Dec 4, 2012)

SkrewzLoose said:


> Well, I'll keep the first one simple while I dig more.
> 
> Actions such as these don't have to be "protected". The text of the 1st amendment states:
> 
> ...


 
Hey teammate, you are lobbing in some softballs...


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## SkrewzLoose (Dec 4, 2012)

I'm trying to look this shit up while my room mate listens to a Pitbull CD that he actually purchased.  A real CD...in a case...it's shiny.
I'll be back with bigger harder more balls better info in a bit.


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## Marauder06 (Dec 4, 2012)

Roguish Lawyer said:


> OK so I know I'm new, but I can't help it. Since there is a correct answer to the questions as posed, may I suggest that you change* "is" to "should be"*?  /rimshot


 
For some reason, this reminds me of another famous lawyer talking about* the definition of "is.*"


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## LimaOscarSierraTango (Dec 4, 2012)

To expound on the *First Amendment*:




> 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 peaceably to assemble, and to petition the government for a redress of grievances.


 
There are two parts to this I would like to address, Most importantly, The Establishment Clause, and secondly, Prior Restraint.

The Establishment Clause


> The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also *prohibits government actions that unduly favor one religion over another*. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion. (SOURCE)


 
Lets say you have two groups, Group A and Group B to keep things simple.

When Group A is allowed to burn the holy book of Group B because there will not be any violent uprising, but Group B is being told by agents of the government not to burn the holy book of Group A for fear of violence, then you are violating the bolded part of the Establishment Clause of the First Amendment of the US Constitution.

Prior Rrestraint


> *In First Amendment law, a prior restraint is government action that prohibits speech or other expression before it can take place.*  There are two common forms of prior restraints. The first is a statute or regulation that requires a speaker to acquire a permit or license before speaking, and the second is a judicial injunction that prohibits certain speech. *Both types of prior restraint are strongly disfavored, and, with some exceptions, generally unconstitutional.*  (SOURCE)


 
Agents of the Federal Government asked the instigator not to desecrate a holy book before he had actually done it.  This is the exact definition of Prior Restraint.

Section one of the *Fourteenth Amendment* is also at the heart of the argument.



> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; *nor deny to any person within its jurisdiction the equal protection of the laws*.


 
The bolded part of the Amendment re-iterates the Establishment Clause, but relates it at the State level instead of the Federal level like the First Amendment.  Again, if you grant Group B protections, those protections MUST BE granted to Group A.


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## SkrewzLoose (Dec 4, 2012)

As was mentioned previously (before this became it's own thread, hey I'll give credit where it's due), freedom of speech extends beyond just words and covers actions as well. The following cases all show examples of 1st amendment rights being upheld when actions, not words, were called into question.

Tinker Vs. Des Moines
The _act_ of wearing an arm band to protest the government's handling of the Vietnam war was covered by the rights afforded in the 1st amendment.

Texas Vs. Johnson
Involved the burning of an American flag during the 1984 RNC. Johnson was initially convicted, but then had the decision reversed by the TX court of criminal appeals citing protection under the 1st amendment. Again, his _actions_ were protected, just like in the case above.

There's one more case that I'm trying to get some clarification on.
In any event. There should be no recourse for the act of burning a Quran or any other sacred text because, just as above, they are protected by the 1st amendment. If people want to be angry about something like this, they have every right to. Legally though, they wouldn't have a leg to stand on.

ETA: Found it in words that don't make my brain hurt.  But here is what was/is considered the land mark case regarding the 1st amendment vis-a-vis non-verbal speech.

Stromberg Vs. California
Yes, I know it's Wiki, but the first link I found didn't make enough sense to LOST or myself. California invoked a statute banning the wearing of red flags.  The decision was later overturned 7-2 by SCOTUS due to its violation of the 1st and 14th amendments.  




> From the late 1700s on, American law has recognized symbolic expression and verbal expression as legally and constitutionally equivalent. "Speech" and "press" in the First Amendment don't just apply to words or printed materials. The First Amendment protects symbols, paintings, handwriting and, yes, flag burning.


​http://online.wsj.com/article/SB124657642816289111.html


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## CDG (Dec 5, 2012)

The burning of a Koran is not protected under the 1st Amendment because it falls under the "Fighting Words" clause.

http://www.law.cornell.edu/wex/fighting_words

Nolo's Plain English Law Dictionary defines "Fighting Words" as: Inflammatory words that are either injurious by themselves or might cause the hearer to immediately retaliate or breach the peace. Use of such words is not necessarily protected "free speech" under the First Amendment. If the hearer is prosecuted for assault, claiming fighting words may establish mitigating circumstances.

http://www.nolo.com/dictionary/fighting-words-term.html

Furthermore, the decision in Chaplinksy vs. New Hampshire , 315 U.S. 568 (1942) clearly states:

"It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0315_0568_ZO.html

Given the context of all of the above references coupled with Islamist proclivity for violence when they feel their religion has been disrespected, it is clear that the burning of a Koran IS NOT protected under the 1st Amendment. The action of burning a Koran stands a very reasonable chance of inciting violence and/or a breach of the peace.


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## LimaOscarSierraTango (Dec 5, 2012)

CDG said:


> Nolo's Plain English Law Dictionary defines "Fighting Words" as: *Inflammatory words* that are either injurious by themselves or might cause the *hearer* to* immediately retaliate or breach the peace*. Use of *such words* is not necessarily protected "free speech" under the First Amendment. If the *hearer* is *prosecuted for assault, claiming fighting words may establish mitigating circumstances*.


 
The key here is that they are words, not actions.  Because of this, your argument and case studies are irrelevant.  While the First Amendment does cover actions, inflammatory (or fighting) words do not.  This debate is about destroying a symbol.  Nothing has been said about a speech or signs that may or may not go along with it.  It is about the act of destroying the symbol.  Therefore the use of "fighting words" does not fit into the argument.

Further, the definition states there must be an immediate breach of the peace or retaliation.  In situations like this, while there may be protests, there hasn't been any immediate breach of the peace or retaliation in the United States.  There may be threats of action, but when has there been an actual event immediately following something like this.  Talking about doing something does not constitute retaliation or a breach of the peace.

One last point I would like to make.  The last sentence in the definition posted makes it sound more like "fighting words" can be used as a defense in a criminal trial.  It does not look like it is used to take away someone's rights under the First or Fourteenth Amendments.



CDG said:


> Given the context of all of the above references coupled with Islamist proclivity for violence when they feel their religion has been disrespected, it is clear that the burning of a Koran IS NOT protected under the 1st Amendment. The action of burning a Koran stands a very reasonable* chance of inciting violence and/or a breach of the peace*.


 
The U.S. Constitution does NOT extend past our borders.  Fundamentalist Islamists, or those with a tendency towards violence only usually act on it outside of the United States.  Here, there is a tendency to protest.  Protests are non-violent and do not breach the peace. 

Also, I would like to point out that taking away someone's Constitutional rights on the chance of repercussions is in and of itself unconstitutional.  While not following the story closely, I have not heard anyone/any group say that they will break the law if this guy goes through with his plan.  Therefore there is no reason to deny him his rights.


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## Marauder06 (Dec 6, 2012)

While the Constitution is the absolute law of the land, it was never intended to be absolute or unchanging.    The framers recognized that the rules they laid down to guide their new country would have to be able to evolve with the times, so  they made provisions to enable the modification of the Constitution.  In fact, the very issue we are discussing, the First Amendment, was an afterthought added to the Constitution long after its original signature.

Over the years, the Supreme Court has again and again held up the concept reasonable restrictions on our rights, including the right to bear arms and of course the right of free speech.  A quick look at both history and case law illustrates that free speech has limits, and it is easy to see why most of those limits are in place.  Perhaps the most oft-cited example of reasonable curbs on free speech is "yelling fire in a crowded theater."  I think all of us understand intuitively why that is both dangerous and not Constitutionally-protected speech.  This has a direct parallel to the issue currently under debate.  Desecrating the Koran, which to Muslims is not a mere "book" but the literal and sacred word of God, is exactly like the "yelling fire" example because the possible disruptive and dangerous results (panic, chaos, and death) are exactly the same.  We have seen time and time again the reactions of Muslims, particularly overseas, to publicity stunts like the one which spawned this thought piece.  Those kinds of actions are even more reprehensible given that the people who carry them out almost never suffer the repercussions themselves, but our servicemembers, diplomats, and other citizens over seas frequently do.

So, burning the Koran is an inciteful act, given that carrying it out can logically be assumed to spawn massive violent outbursts in Muslim communities around the world.  So of course GEN Petraeus would reach out to ask- "ask" not "demand" or "threaten" or "push pressure on"- a fellow citizen not to do something that would put Americans and the American mission overseas in jeopardy.  Some of you are angry at Petraeus for intervening?  I'd be more pissed off if I found out he hadn't.


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## LimaOscarSierraTango (Dec 6, 2012)

Marauder06 said:


> While the Constitution is the absolute law of the land, it was never intended to be absolute or unchanging. The framers recognized that the rules they laid down to guide their new country would have to be able to evolve with the times, so they made provisions to enable the modification of the Constitution. In fact, the very issue we are discussing, the First Amendment, was an afterthought added to the Constitution long after its original signature.


 
Agreed, but… modifying the Constitution isn’t the issue here.  It is the interpretation of the laws stated within it that matter.



Marauder06 said:


> Desecrating the Koran, which to Muslims is not a mere "book" but the literal and sacred word of God, is exactly like the "yelling fire" example because the possible disruptive and dangerous results (panic, chaos, and death) are exactly the same.


 
With all due respect, the results of yelling fire in a crowded theatre and fat frying the Koran are not exactly alike.  For brevity purposes, I will just hit on one prime example.  While yelling fire may cause panic, frying up a book does not.  In this case, it causes anger.  I think a more suitable argument instead would be to use the Westboro Baptist Church protests at military funerals.  But then again, while their chants and derogatory signs are deemed “hate speech” (speech not protected under the First Amendment), their protests are still considered protected by the First and Fourteenth Amendments. 



Marauder06 said:


> We have seen time and time again the reactions of Muslims, particularly overseas, to publicity stunts like the one which spawned this thought piece. Those kinds of actions are even more reprehensible given that the people who carry them out almost never suffer the repercussions themselves, but our servicemembers, diplomats, and other citizens over seas frequently do.


 
What you see as a publicity stunt, others see as a protest.  What deems actions to not be protected by the First and Fourteenth Amendments are usually the immediate reactions.  Frying the Koran will spawn protests and pleas for jail time for the shock jock.  Some people may actually call for a fatwa, but even you alluded to the fact that nothing major will happen here. 

Looking overseas, people are just waiting for an excuse to cause issues for our service members, diplomats, and other citizens.  We are continually hated by, protested against, kidnapped by, and fighting against Muslims.  They have attacks already planned out and just looking for an excuse.  If there is no excuse available, then it will just be an attack.  If there is an excuse available, then they will use that for the attack that took a month to plan and coordinate.  Look at Benghazi.  They had been planning the attack for weeks, and then used a stupid film as an excuse.  This protest is no different.


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## SkrewzLoose (Dec 6, 2012)

Last paragraph hit the nail on the head, LOST.  Those countries have been in a constant state of upheaval for centuries.  Now they just pick and choose certain events carried out by the Infidel to "justify" their riots, killings, etc.  I call shenanigans.


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## Marauder06 (Dec 6, 2012)

Since we already established that protest actions are in fact free speech, and as my esteemed colleague, Mr. CDG has already said, 


> fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace,


 are not protected free speech, then I do not see how it is possible to view the desecration of the Koran as anything other than expression that is not protected by the 1st Amendment and should be stopped cold before it causes more damage to US citizens and the US's global prestige.


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## LimaOscarSierraTango (Dec 6, 2012)

Marauder06 said:


> Since we already established that protest actions are in fact free speech, and as my esteemed colleague, Mr. CDG has already said, [fighting words] are not protected free speech, then I do not see how it is possible to view the desecration of the Koran as anything other than expression that is not protected by the 1st Amendment and should be stopped cold before it causes more damage to US citizens and the US's global prestige.


 
What if the burning of the Koran was done in protest of something, like maybe protesting a "peaceful" religion?  What if it was done at a rally or protest?  I have not been able to find any cases that show where "fighting words" have included actions.  Every case I have come across has dealt with the spoken word.

How about we discuss the Fifth and Fourteenth Amendments? Both make statements about not depriving people of life, liberty, and property without due process of the law.  The difference between the two Amendments is that the Fifth Amendment applies to the Federal level while the Fourteenth Amendment applies to the State level.


Equal Protection also referred in Due Process:


> The Equal Protection Clause of the 14th amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. In other words, the *laws of a state must treat an individual in the same manner as others in similar conditions and circumstances*... Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right.


 
This can be tested in times where flags or bibles are allowed to be burned.  There is no difference between a bible and the Koran, aside from the people that follow each book.  If you can burn a bible, you can burn a Koran.


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## SkrewzLoose (Dec 6, 2012)

In the TX Vs. Johnson case I cited earlier, this guy torched a flag during the RNC.  He was burning a symbol of our freedom, in protest, and the initial guilty verdict was overturned.  Same shit, different toilet.


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## CDG (Dec 7, 2012)

LimaOscarSierraTango said:


> This can be tested in times where flags or bibles are allowed to be burned. There is no difference between a bible and the Koran, aside from the people that follow each book. If you can burn a bible, you can burn a Koran.


 
Not necessarily.  The whole issue with the "fighting words" clause is the reasonable chance of it inciting violence or a breach of the peace.  Now, the argument can be made that the onus is on the hearer to control their actions regardless of what is said/done, but that is not how the courts have ruled.  The burning of a Koran stands a very probable chance of inciting widespread violence.  The WBC protests have historically only caused isolated incidents that are quickly dealt with.  Furthermore, the argument that the "fighting words" only applies to literal words is a smokescreen argument as the validity of material protest being a protected form of free speech has been well-established.  So by the court's own ruling the Koran burning is not protected by the 1st Amendment due to this:  "those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace."


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## Marauder06 (Dec 7, 2012)

OK, I'm calling ENDEX on this exercise.  Participants can now reveal their true positions on this topic and anyone else is cleared hot to participate.


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## CDG (Dec 7, 2012)

My true view is that the burning of any book should be outlawed.  It's a book people, show some respect! 

In all seriousness though, I think the burning of a Koran, Bible, Talmud, or anything else should be considered protected under the 1st Amendment, despite the fact that it does not offer any real social value or relevant commentary.  The fact that many Muslims choose to throw violent temper tantrums over it is not the problem of the burner, although maybe it should be.  I would love to see the idiot that burned the Koran have to deal with defending himself against a mob of angry Muslims, as that would maybe get him to think a little more in depth about the ramifications of their decision.  That being said, the kind of Muslims that resort to violent protest over the Koran being burned are the kind that will take any excuse to riot and act like fucking idiots.


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## CDG (Dec 7, 2012)

Marauder06 said:


> and as my esteemed colleague, Mr. CDG


 
Ho. Ly. Shit. Possibly both the greatest compliment and most demoralizing insult I have ever gotten in my life.


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## SkrewzLoose (Dec 7, 2012)

I actually learned a few things from having to research the "other side" of this argument.  Well done, Sir!
That being said, I wish people like this and WBC would just disappear one night never to be heard from again.  Illegal or not, it gives radicals a "rallying cry" if you will and as I mentioned earlier, and CDG alluded to a few posts up, they'll (Bubba, et al) never have to answer for their actions.  
Protected under the 1st amendment: Yes, I believe it is
Does it pass the common sense test: No
Therein lies the rub.  You can debate legality or common sense but when you bring both into the mix, you wind up at a stale mate.


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## Marauder06 (Dec 7, 2012)

When you're forced to take the other side of an argument, and when you're willing to put genuine effort into it, it really increasing your overall appreciation of the problem.  If you do it right, you'll either 1) confirm what you originally thought, in which case "knowing the enemy" by arguing his point makes you better able to defeat it, or 2) realize that you were wrong with your initial assessment.  Either way, you come away with a much more holistic understanding of the scope of the problem and the rationale on both sides.


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## SkrewzLoose (Dec 7, 2012)

I'd love to know what Bubba's "rationale" was.  
These are enjoyable.  I told LOST that I'm often hesitant because I'm behind the power curve on a lot of this stuff.  I can't rattle things off the top of my head like it seems that some of you can.  The research was enjoyable though.  The starting point was the most difficult.  Once I learned how to narrow my searches down a bit, it helped tremendously. I'll gladly participate if you choose to do more of these here...as long as they don't interfere with your case study, Sir.  Speaking of which...


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## Marauder06 (Dec 7, 2012)

Reference the case study, there will be no more updates at least until Monday, we have a major simulation exercise going on over the weekend, and I have a major paper on the EU's military due early next week.  And of course I haven't really started it yet.


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