Flag Burning Should Be Prohibited
Should flag burning as a form of protest be prohibited?
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It is trite law that free speech is not and should not be unlimited. Article 10 of the ECHR expressl...
It is trite law that free speech is not and should not be unlimited. Article 10 of the ECHR expressly acknowledges that freedom of expression can be curtailed in the interests of national security or public safety. Notwithstanding the unqualified language of the First Amendment, the American state legislatures and courts have consistently prohibited various categories of speech, such as bribery, perjury and counselling to murder. Free speech does of course sustain democracy. However, a vague appeal to democracy cannot support flag burning as a means of protest. The American state legislatures that have consistently prohibited flag burning have participated in a democratic process. The citizens of these states have freely expressed their opinions, through the votes of their elected representatives. It is their majority opinion that flag burning should be banned. When a court nevertheless permits the desecration of the flag, it protects the freedom of expression of one individual against the democratic freedom of the vast majority.
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.
It is controversial even to regard flag burning as an example of free speech. First, the law cannot...
It is controversial even to regard flag burning as an example of free speech. First, the law cannot label and protect a limitless variety of conduct as ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea. Only reckless or accidental acts are not intended by the actor to have a certain effect. Second, from the theories of John Milton and J. S. Mill we have recognised that the purpose of free speech protection is the advancement of knowledge or truth. The US Supreme Court has developed these theories through regularly using the metaphor of the 'marketplace of ideas'. Free speech allows the value and accuracy of different ideas to be publicly discussed, rejected, accepted or developed. Yet, flag burning does not contribute to any dialogue or exchange of ideas. It is the opposite of calm and rational debate.
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.
Flag burning is a wholly unnecessary means of protest. It does not convey an opinion that a protest...
Flag burning is a wholly unnecessary means of protest. It does not convey an opinion that a protestor could not compose more clearly through the conventional media of the spoken or written word. Flag burning is not speech but an unnecessary and offensive act of vandalism.
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.
The national flag is a symbol of nationhood and national unity that ought to be protected from abuse...
The national flag is a symbol of nationhood and national unity that ought to be protected from abuse. The flag is a unique symbol that has been cherished by the population since the foundation of the Republic. It represents the turbulent struggle for unity through the Revolutionary and Civil Wars. The protestor burns a flag not in order to damage the material per se but to harm or criticise the ideals that the flag represents. It is not necessary to show that patriotic feeling is in fact damaged by flag burning. It suffices that the act of desecration is designed to offend these ideals. The learned jurist Justice Oliver Wendell Holmes warned that 'a page of history is worth a volume of logic'. Patriotic principles do deserve and do receive the respect that is manifested in obedience to the flag. Saluting the flag is conventional (though no longer constitutionally compelled) throughout the American school system. The flag is raised and flown on public buildings and at major public events. Citizens express their adherence to the flag through the votes of their elected representatives in state legislatures to pass laws that prohibit flag burning. The law properly protects the principles that are important to its citizens from attack: blasphemy laws protect certain religious beliefs from desecration, slander and libel laws protect personal and group reputations from abuse. Furthermore, even if we assume that flag burning is a valid means of expression, the freedom of expression must be balanced against the important societal interests that are represented by the flag. Given the existence of alternative methods of expression that do not harm these ideals of national unity, the balance is in favour of the prohibition of flag desecration.
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 flag burning prevents the breaches of peace that are prompted by such protests. G...
The prohibition of flag burning prevents the breaches of peace that are prompted by such protests. Given that the flag does enjoy such respect amongst the citizens, those near such an act of desecration might rightly be angered. The stimulation of shock and outrage in the immediate audience is in fact the intention of the protestor. It is not necessary to condone the actions of an audience that might physically assault the protestor. Yet, it suffices to note that flag burning amounts to inciting a breach of the peace. Most societies generally prohibit this form of incitement. A ban on flag burning merely informs a potential protestor that such desecration is likely to lead to a breach of peace and is properly prohibited within the ambit of an existing offence.
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 should draw the distinction between the protest and the opinion of the protestor. We alread...
The law should draw the distinction between the protest and the opinion of the protestor. We already accept that we can prohibit one and not the other. Certain forms of protest ought to be prohibited, without officially condemning the opinion that is expressed by the protest. For example, terrorists, anti-vivisectionists, and other political activists who damage property and inflict injury and death as a means of protest do commit crimes. English law is not unusual in providing a detailed statutory code for the regulation of public protests. This code enables protest to be conducted peacefully and safely, for example by requiring the permission and assistance of the local police force in advance of a planned march. The prohibition of flag burning similarly precludes a dangerous form of protest without prejudice to the viewpoint of the protestor.
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.
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