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Why we should protect flag-burners
By Steven | May 12, 2011
This piece is in today’s DomPost, but they don’t seem to have put it up online:
I’m astonished by the reaction to the Supreme Court’s decision overturning Valerie Morse’s flag-burning conviction. “Anyone can burn our flag”, thunders the front page of the Dom Post, disapprovingly. It’ll make the police’s job harder, intones Radio NZ news. The decision is “ridiculous”, says an RSA official.
I was one of Valerie Morse’s lawyers, so I’ve thought a lot about her case. And these responses strike me as shallow and misleading.
One reaction I can respect, though, is from those (like other RSA spokespeople) who are appalled that anyone would think of burning a
But protesters are a determined breed. They care passionately about the issues they demonstrate about. Many have devoted their lives to the cause. For Valerie, and others, that cause is our country’s involvement in foreign conflicts. Their banner that day called on the government to pull our troops out of
It is difficult to think of a more important political issue than whether we should involve ourselves in foreign conflicts. And it’s difficult to think of an important political issue that has received less debate and media attention.
Is it any wonder that protesters see the need to shock us out of our complacency? Remember, we’re talking about protesters who tend not to have the money to run big media campaigns. They don’t own newspapers. They don’t feel represented by the political parties. They tend to be regarded as radical. Journalists don’t go to them for quotes and stories.
So why listen to them at all? Why indeed? Why listen to those upstart suffragettes in the nineteenth century? The smelly hippies in the sixties who started drawing attention to environmental degradation? The handful of consumer activists pointing out that our cars were unsafe? The clutch of humourless harpies arguing for equal pay for women?
US law professor Cass Sunstein has written a series of terrific books exploring how ideas take hold in society. The evidence shows we have a strong tendency to conform to prevailing ideas. When those ideas are widespread, but flawed, this can have terrible consequences. We’re often in the most danger when we’re the most smugly sure of ourselves. But the good news is that society can be rattled out of narrow mindsets, and sometimes change direction altogether. All it takes is a handful of dissenting voices. They provide the opening for the rest of us to start considering different approaches. We should encourage dissent, he concludes, not punish it. Conformists benefit their own interests. Dissenters benefit society.
Of course, that doesn’t mean that every protester has magic access to the truth. Some are crackpots. The point is that it is vital for society to be constantly challenged by people who strongly believe that things should be done differently.
Valerie’s flag-burning ignited howls of outrage about her methods. But it also sparked one of the few debates we’ve had about our engagement in
What’s more, it drew a stinging rebuke from the Prime Minister and the leader of the opposition. I’m inclined to think that a dressing down like that is the right place for those seeking to enforce norms of decency in protests. We don’t need to use the criminal courts.
When protesters are brought before the courts, the New Zealand Bill of Rights Act is there to ensure that judges respect rights of free speech, and only restrict it when doing so can be “demonstrably justified in a free and democratic society”. Valerie’s case was about forcing the courts to acknowledge that the police and criminal law must give protesters, and others engaging in speech, more latitude.
This is hardly a radical idea. It is well established internationally that the right to free speech protects protesters and includes the right to shock, offend and disturb. As UK Court of Appeal judge Sir Stephen Sedley put it in a similar protest case: “Freedom to speak inoffensively isn’t worth having”.
There is surely no country on earth that treasures its flag and its troops more than the
The Supreme Court upheld their rights. It said the First Amendment serves to “protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Our Supreme Court has not gone so far. It has not said it will never be offensive behaviour to burn a flag. It has not stripped police of their powers to intervene in a protest when a breach of the peace is imminent (though the thrust of the decision suggests police should usually restrain crowd members from taking unreasonable retaliatory action, not arrest the protesters).
The court unanimously laid down a principle that we can’t punish behaviour as offensive unless it’s disturbing public order. And when protesters are exercising speech rights, we must be extra tolerant of their views and their methods – even if we despise both – before we can call their conduct criminal.
That seems right to me. That’s what freedom looks like.
*In the comments thread, Russell Brown disagrees that the flag-burning “sparked one of the few debates we’ve had about our engagement in Afghanistan”. I’ve gone back and looked at my files, and he’s got a point. As my op-ed piece accepts, most of the response was about whether it was appropriate to burn a flag. But it did go further than that. In the course of the coverage, the protesters’ message about involvement in foreign military conflicts was fairly widely reported. Three editorials discussing her actions outlined the reasons for them. Several letters to editor were published that addressed the militarism debate (“Our robust independent foreign policy ensures that we make up our own mind on conflict in the world today and I think Morse needs to give New Zealand greater credit for that”, said one. Another suggested that the way we honour our “heroes” sometimes obscures the atrocities that countries commit in wars). I’ve reproduced one of Valerie’s letters below. In addition, Marion Hobbs, who attended the ceremony on behalf of the government, defended our involvement in overseas conflicts as peacekeeping and said Morse must be “crazy” to oppose it. There was also debate about whether ANZAC day was, as Morse contends, a “glorification of war.” But I don’t have any evidence that the debate focussed specifically on Afghanistan.
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