Flag Burning Should Be Prohibited

Free speech can of course be restricted. Nevertheless, if we are to assume that free speech is a general or utilitarian good, every limitation on its exercise must be justified. Flag burning is unlikely to endanger national security or public safety. A uniform prohibition on flag burning must be justified. We do not dispute whether free speech can be restricted, but, in a democracy that accepts the vitality of free speech, we do need to know why. Free speech is protected both because of and in spite of democracy. Free speech is of course fundamental to and symbiotic with the democratic process. This process cannot thus simultaneously justify the denial of free speech. Human rights and civil liberties are granted to protect the minority from the wishes of the majority, howsoever democratically expressed. Ronald Dworkin thus defined constitutional rights as the ‘political trumps’ that are held by the minority and which represent the promise by the majority that the freedoms of the minority will be respected. To deny a means of free speech in the interests of democracy is avowedly harmful to democracy. It forecloses discussion. It precludes any challenge to the ruling majority. It is the route to tyranny.

To question whether flag burning is an example of free speech is to engage in a futile semantic discussion. The law ought to protect the freedom of expression. Expression includes both conduct and speech. Article 10 of the ECHR does in fact protect expression rather than speech. The US Supreme Court in the case of O’Brien v. United States, that in fact concerned the burning of a draft certificate as a means of protest, recognised that ‘symbolic conduct’ can be protected under the First Amendment. Moreover, the purpose of free speech protection is not limited to the exchange of ideas. Further or alternatively, the act of flag burning does of course express an idea. A protestor burns a flag in response to a given issue or incident. The act of burning merely signifies the importance of the issue, it is not the issue itself.

The conduct of flag burning is often necessary to enter the marketplace of ideas. Political debate is presently dominated by global news media, and in particular the television bulletins and the front-page photographs of leading newspapers. In these reports, actions speak louder than words. The act of flag burning is likely to capture the attention of these journalists and thereby bring the issue that prompted the protest to the public gaze. Notably, perhaps the most dramatic and vivid protest against the Vietnam War was apparent in the actions of the self-immolating Buddhist monk at a Saigon crossroads. The conduct was burning, but few would dispute that it was also conduct conveying a message of critical importance which merited and received global attention.

Flag burning is in fact a patriotic act. The assumption informing this form of protest is that the flag represents national ideals and that these ideals usually require respect. When a protestor desecrates the flag, she conveys the message that the political cause or incident is so important that it is connected to the very ideals of citizenship of that country. The protest might indicate that if the government of a state tolerates a given policy, it deprecates the meaning and pride taken in being a citizen of that state. Moreover, flag burning does not harm the patriotic feelings of the audience. In fact it might stimulate a patriotic response. The Supreme Court in the case of Schacht v. United States in fact observed that it could imagine no more appropriate response to the flag burner than waving a flag of one’s own or saluting the flag as it burns. Further or alternatively, patriotic principles do deserve to be questioned. The idea of nationhood and national duty frequently justifies the decision to commit the citizens of a country to war. These citizens must be able to criticise the credo, embodied in a flag, that could cause the loss of their lives. The analogies to blasphemy and libel laws are badly drawn. The advocate of free speech can consistently oppose both the prohibitions of blasphemy and flag burning. Libel laws preclude only inaccurate statements about factual reputations. Yet protest does not concern the accuracy of any opinion and the flag does not represent any concrete fact. Finally, it should be noted that flag burning directly harms no one. Assuming that the flag is the property of the protestor it causes no criminal damage. Therefore, prosecution and conviction for flag burning is penalization solely for criticizing the ideals that the flag represents. This approach approximates to Orwellian thoughtcrime.

The prohibition of an act because it is likely to cause offence or disruption amounts to a heckler’s charter. No matter how unreasonable the reaction of the audience, or how important or rational the cause connected to the protest, the audience, (or worse, the audience conjured by the court or legislator), can prohibit the protest. J. S. Mill in his seminal treatise On Liberty and, the jurist H. L. A. Hart one century later in Law, Liberty and Morality, recognised that such prohibitions amounts to banning a viewpoint simply because the majority disagree with it. Further, the purpose of a protest is to cause the outrage that might unfortunately result in a breach of peace. The US Supreme Court in Terminiello v. City of Chicago held that the ‘purpose of protest is to invite dispute’. Banning flag desecration because the audience should challenge it amounts to prohibiting a protest because it is a protest! Moreover, it is noted that an audience member who commits a breach of the peace undoubtedly commits a crime. There is no defence of provocation to the commission of assault or damage or criminal damage. Banning flag desecration on account of the threat to public order is the prohibition of an otherwise lawful act for the reason that others will commit crimes in response.

The law cannot draw any distinction between an act of protest and the opinion it expresses. Laws that prohibit flag burning, penalize not only the act of burning but also the underlying opinion. These statutes are particularly bad because they allow a government to criminalise viewpoints critical of its policies. The government of the day is commonly associated with the flag. By banning desecration of the flag the government suppresses an expression and an opinion that is hostile to its interests. Government for the interests of the rulers and the denial of debate are tendencies towards tyranny.