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Debate: Prohibition of flag burning

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Should flag burning as a form of protest be prohibited?


Background and Context of Debate:

The prohibition or permission of flag burning is a key issue in the constitutional protection of free speech. The First Amendment of the Constitution of the United states that: "Congress shall make no law abridging the freedom of speech". Article 10 of the European Convention of Human Rights (ECHR) and Fundamental Freedoms also extends protection to the freedom of expression. The Human Rights Act 1998 enacts the Convention in the domestic law of the United Kingdom.The three landmark cases in this area merit a brief discussion. In 1969, the Supreme Court of the United States in the case of Street v. New York 394 U.S. 576, 89 S.Ct. 1354 narrowly overturned a conviction for flag desecration under a New York statute. The protestor publicly burnt the Stars upon hearing of that the civil rights leader James Meredith had been shot. The Court revisited the issue in 1989 in their decision in Texas v. Johnson 491 U.S. 397, 109 S.Ct. 2533. A majority decision overturned a conviction under a Texas statute for burning a flag in a demonstration outside the Republican National Convention in Dallas. This case generated immensely strong popular and political opposition. President Bush in fact advocated amending the Constitution in order to reverse the decision of the Court and prohibit flag burning throughout the United States. Instead, overwhelming majorities in Senate and Congress passed the Flag Burning Protection Act 1989. This statute was immediately and publicly violated by protesters seeking to test its constitutionality. In a 5-4 majority decision, the Supreme Court in United States v. Eichman 496 U.S. 310, 110 S. Ct. 2404 held that the Act was unconstitutional. The advocates of the flag burning statute responded by seeking a constitutional amendment. The significance of this proposal should not be understated. The bill represented only the fifth attempt in the history of the Republic to overturn a decision of the Supreme Court and the first time an amendment had been sought.

Security threat? - Is flag burning a national security or public safety threat?


Free speech is and should be limited in many instances. 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 counseling to murder.

Flag burning laws should be subject to state-level public opinion and will: 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.


There is no consistent causal link between flag burning and national security and/or public safety threat (the common justifications for any restrictions on freedom of speech): The most common justification for the limitation of an instance of free speech is that national security or public safety is jeopardized by that instance. It follows that flag burning must be demonstrated as jeopardizing national security or public safety if it is to be prohibited. Certainly, there is not overt, direct harm done to national security or public safety by flag burning; it is purely a symbolic act. Any threat could only be surmised by an analysis of the causality of the "symbolic expression" of burning a flag. The main question is whether this "symbolic expression" incites actions that jeopardize national security or public safety. The main point against censorship is that the nature of the symbolism involved in flag burning cannot be defined as clearly threatening. It can be argued, for example, that a citizen might burn a flag in celebration of the liberty of free speech and the American system that provides this liberty. In this context, the mere act of burning a flag might actually have a patriotism-building effect, instead of a threatening effect. By breaking the causal link between flag burning and a national threat in this way, it becomes impossible to justify a blanket prohibition of flag burning on the grounds that it is always a threat to public safety and national security.

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.

Freedom of "Speech": Does flag burning not qualify as an element of "speech", and subsequently deserves no protection by principles of "freedom of speech"?


Flag burning does not clearly qualify as an element of "speech" that should receive freedoms: 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.

The purpose of free speech protection is the advancement of discourse, knowledge, and truth, but flag burning adds nothing to any of these objectives: The theories of John Milton and J. S. Mill make this point. We have recognized that 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.

Means to Protest: Is flag burning an unnecessary means to expressing protestation on an issue?


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.


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