A recent presidential tweet highlights a tendency in US politics that sees the law as a tool to shut down controversial speech. Liam Glen writes on the importance of free expression.
Free speech stands at the center of the modern culture war. On social media and college campuses, conservatives rail against those who seek to suppress free expression in the name of political correctness.
It is ironic then that the leader of this charge, President Donald Trump, tweeted his support of a constitutional amendment that would overturn part of the First Amendment. The proposal, introduced by Republican Senator Steve Daines, declares “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”
This is not the first time that Trump has tackled flag desecration. In late 2016, he went as far as to say that flag-burners should be stripped of their citizenship.
Cherishing one’s own freedom while cracking down on that which one deems offensive is neither new nor unique to any faction or ideology. But as these kinds of debates grow louder, conservatives and liberals alike need to remember the value of the First Amendment.
An Indestructible Flag
The definition of flag desecration is rather murky. According to the US Flag Code, many common displays of patriotism – like wearing the flag on clothing – are actually disrespectful. President Trump’s practice of hugging the flag probably breaks more than a few regulations.
In common parlance, however, the term describes the intentional destruction of the flag, usually with fire (not including flag retirement ceremonies). It is a common form of protest among individuals with strong gripes against the US government.
In turn, the US government has had strong gripes with them. Even after the Supreme Court ruled that flag burning is protected speech, Congress has tried multiple times to get around the decision.
Conservatives have led the charge, but they are not the only ones. The Flag Protection Act of 2005 garnered co-sponsorship from leading Senate liberals Hillary Clinton and Barbara Boxer.
For many, the issue is an emotional one. The most common argument for a ban is that soldiers died for the flag, and it therefore deserves respect. But this quickly falls apart. No one has ever died for a flag. They die for what the flag represents – which is freedom, including the freedom to be disrespectful.
Americans place a high value on symbolic patriotism. But it is infinitely more important for us to uphold our core values. If we launch criminal prosecutions against people because we do not like the way that they treat a piece of cloth, we send the twisted message that symbols deserve more respect than human beings.
Modern conservatives who champion the right to be transgressive should know this better than anyone. They are often accused of being mindless provocateurs whose only goal is to “own the libs.” If they want to prove that they are a legitimate movement, it is imperative that they stand up for the rights of those with whom they disagree.
Right-wing polemicist Candace Owens failed the test when she responded to the controversy with a trollish tweet echoing Trump’s earlier demand that flag burners’ citizenship be revoked.
Luckily, other conservatives have shown more self-awareness. The best response may have come from cartoonist-turn-oddball political commentator Scott Adams, who wrote, “The flag’s burnability is exactly what makes it indestructible. I’ll only pledge allegiance to a flag I can burn in public.”
I would probably be accused of hypocrisy if I did not address free speech controversies on the left. This is a more complex issue as it largely focuses on private entities like social media companies.
It is a conversation that is very much worth having, but it does not involve the First Amendment.
However, there does exist a small but growing faction of progressives that support government regulation on speech. In 2015, 40% 18-to-34-year olds said that the government should be able to restrict “statements that are offensive to minority groups.” In 2017, former DNC Chair Howard Dean tweeted the false claim “Hate speech is not protected by the first amendment.”
It is not hard to imagine a future where the Democratic Party supports a constitutional amendment to ban hate speech, similar to laws that exist in many European countries.
Many progressives have grown disillusioned of classical liberalism’s lofty ideas about inalienable rights. Instead, they follow a simple logic: hate speech is harmful and should be prevented.
Hate speech often overlaps with harassment and incitement of violence, which the government does have a right to regulate. However, going a step further and punishing people simply for making offensive comments is a pathway with unintended consequences.
Such laws make it more difficult to express hateful views in public, but people will not automatically become less hateful. Indeed, the threat of legal persecution can easily harden bigots’ views. In turn, they can use any legal action against them to garner unwarranted attention.
It is for this reason that far-left academic Noam Chomsky is a firm defender of free speech. As he answered when asked about his controversial support for the rights of Holocaust deniers, “In a lot of Europe, Holocaust denial is a crime… In the United States, it’s not a crime. The consequence is that in the United States, Holocaust denial is unknown. There’s plenty of it… but nobody pays any attention to it… In France and a lot of Europe, it’s all over the front pages, a ton of publicity.”
Perhaps there is no better case study than Mark Meechan and his infamous “Nazi pug” video. In it, the Scottish YouTuber trains a dog to react to the phrases “gas the Jews” and “Sieg Heil.”
In the video, he explains his motivations, “My girlfriend is always ranting and raving about how cute and adorable her wee dog is, and so I thought I would turn him into the least cute thing that I could think of, which is a Nazi.”
The court, however, did not find the video amusing and in 2018 ruled that Meechan had committed a hate crime by uploading it.
If the purpose of the law was to mitigate hatred, then it had the opposite effect. Despite the relatively mild punishment (an £800 fine), an online movement hailing Meechan as a free speech martyr arose to support him.
Rather than repenting of his actions, Meechan fell into the far-right crowd that rallied to his defense. In 2019, he was a UKIP candidate for European Parliament. The saga could have been avoided altogether if the government had just decided that a YouTube channel making a poor attempt a shock humor was not worth its time and effort to prosecute.
Progressives must also acknowledge that politicians may not be the best judges of what is and is not hateful. Many leftists were unhappy when French courts upheld a law that declared it an anti-Semitic hate crime to advocate a boycott against Israel.
Balancing Rights and Wrongs
I am tempted to conclude that restrictions on free speech are a slippery slope, one that easily leads to tyranny. But that would be disingenuous.
Plenty of countries manage to have well-functioning democracies while also enforcing restrictions against speech that they deem offensive. Empirical evidence that such laws really have a significant downside is scant.
But there is no evidence that they are beneficial, either. And when we consider passing laws that limit freedom, we must seriously ask ourselves whether it is worth the cost.
Cracking down on flag burning and hate speech makes us feel good. We have stopped something that we deem immoral. But such actions can easily come back to bite us.
Even if it has not always been consistently upheld throughout our history, free speech the most cherished of American values. While we may lack common ground on many other issues, we must at least come together on the old quote, coined by the writer Evelyn Beatrice Hall, “I disapprove of what you say, but I will defend to the death your right to say it.”