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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

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.

National symbol: Should the flag receive special protection as an object because of its representative symbolism for the United States of America and the ideals that that nation holds?


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 can be a patriotic expression. 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.

Patriotic principles do deserve to be questioned and criticized, making potentially un-patriotic acts of flag-burning (in certain contexts) more acceptable: 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 criticize 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 thought crime.

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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 may be the intention of the protestor. It is not necessary to condone the actions of an audience that might physically assault the protestor. Yet, 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 offense.


The prohibition of an act because it is likely to cause offense 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 protester. 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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