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Get over it!
By Steven | May 11, 2008
Some people think flag-burning is offensive. Fine.
Some argue that it’s not speech. Not so fine. One of them, somewhat extraordinarily, is Stephen Franks:
The effect of flag-burning derives solely from its power to shock and offend. It is not speech; it is not expression. It is the suppression and destruction of others’ expression.
As someone with respectable libertarian credentials, Franks ought to know better. He was condemning Paul Hopkinson’s burning of the NZ flag outside Parliament. After taking great care to ensure that the burning did not endanger anyone, Hopkinson torched a flag to protest against the NZ government’s hosting of Aussie PM John Howard, given Australia’s involvement in the Iraq war.
I think Hopkinson’s message was pretty clear. He destroyed a symbol of our state because he was so disgusted with the government associating itself with that war, and he wanted to invite us to notice and share his outrage. Yes, he could have written a letter to the editor, which may or may not have been published, or held up a wee sign, which may or may not have attracted attention. There is a long tradition of flag-burning for political effect. It’s seldom difficult to work out what message is being conveyed. People don’t tend to burn flags just for the sake of it.
Apparently for Franks, though, Hopkinson’s message was as obscure and offensive as if he had dressed up in a bunny suit outside the railway station and thrown faeces at people. “Flag burning is not speech,” Franks says.
I’m pretty sure that Franks was just posturing. He’s smart enough to work out that flag-burning is communicative behaviour. He just didn’t like the judge’s decision, because he felt she mangled the interpretation of the Flags, Emblems, and Names Protection Act to let Hopkinson escape prosecution. That’s a fair argument to make. I confess I was surprised at the decision, too. At best, it was pushing the Bill of Rights Act to its limit.
Still, Franks has called for flag-burning to be properly banned. Franks wouldn’t normally argue for speech to be outlawed just because he (or even many people) disagree with it. What I think he really meant was that Hopkinson’s manner of conveying his message was so offensive that there is justification for banning it. And by “offensive” he means, ultimately… many people disagree with that manner of conveying a message.
I say to those people: suck it up. One of the things that flag stands for is the right to convey your message in ways that other people might find offensive. I don’t want the state telling me how I should restrain my expression of political views to means it finds congenial. Being shocking might be part of the way I like to speak. It may be the best or only way I can attract attention to my message. If I’m not hurting or endangering anyone, or breaking any other laws, there’s no justification for limiting my speech.
Part of the judge’s reasoning in Hopkinson was that there’s no demonstrable justification under the Bill of Rights for preventing non-dangerous flag-burning, and she surely got that bit right. It wouldn’t have been an offence, for example, for Hopkinson to burn an Australian flag outside Parliament, which shows how silly the law is. The US Supreme Court has reached a similar conclusion. [Update: but see Graeme’s delightful post in the comments section.]
The sensitivities around the flag-burning offence are one reason that the Solicitor-General must give consent before anyone can be prosecuted for flag-burning. Good. But now it looks as if police are seeking to do an end-run around the flag burning law. They’re using the offence of offensive behaviour instead. I think that stinks.
In this case, they successfully prosecuted Valerie Morse for offensive behaviour for burning a flag during a last year’s Anzac Day ceremony. She was protesting against the address of the Secretary for Defence. The ceremony was by the cenotaph. Morse was across the road in the University’s grounds.
The district court judge accepted that Bill of Rights was relevant, and that he should be guided by the Court of Appeal’s approach in Brooker v Police. I won’t do an exhaustive legal analysis here. But I’m surprised and concerned that, in the judge’s discussion of whether a finding of offensive behaviour is justified, there is no mention of the fact that there’s a specific crime of flag-burning which requires the Solicitor-General’s consent before prosecution. This use of the offensive behaviour offence can be seen to cut across that law, and there’s a good argument that the use of the more general section is not a justified limitation on free speech. Nor is there much acceptance of the centrality of political speech to section 14 of the Bill of Rights Act, the widely recognised importance of giving protesters considerable leeway in their manner of speech, and the need to treat manner-and-form restrictions (ie the ever-present argument that “we’re not affecting your speech, simply the manner of delivery”) suspiciously when they’re aimed at content.
But perhaps that’s too much to expect at the District Court level. The judgment is under appeal, and I’d hope for more from the High Court.
My argument is not solely a legal one. As a public, we’ve got to grow up, put aside whatever ire we feel at flag-burners, and just accept that they’re part of the cost of freedom of expression. Treating flag-burning as offensive is… offensive to democracy.
If you’re reading this, Stephen, I’m looking forward to your reply. I defy you to stick to the issue here and not try to sidetrack the debate onto the Electoral Finance Act, which I suspect you’ll be tempted to do. I’m happy to open up a debate on that separately. [In fact, I’ve just done so, in the post above.]
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Get over it!