Political Culture, Flag Use and Freedom of Speech

DOI10.1111/j.1467-9248.2011.00893.x
Date01 March 2012
Published date01 March 2012
Subject MatterOriginal Article
Political Culture, Flag Use and Freedom of Speech
P O L I T I C A L S T U D I E S : 2 0 1 2 VO L 6 0 , 1 6 3 – 1 7 9
doi: 10.1111/j.1467-9248.2011.00893.x
Political Culture, Flag Use and Freedom
of Speechpost_893163..179

Katharine Gelber
University of Queensland
Flag use generates passionate debates that fundamentally turn on questions of the appropriate extent and limits of
freedom of speech. The national flag is a natural and forceful medium with which to express one’s views about a
nation. Yet its use in this way also generates controversy and emotionally charged reactions. The purpose of this article
is to assess attitudes in political culture towards flag use in the context of wider freedom of speech considerations. By
analysing events in Australia, the United States and New Zealand, the article argues that public responses to flag use
as a medium of political expression demonstrate a flawed understanding of the meaning, import and effect of freedom
of speech and its limits. This has significant implications, exposing the extent of fragility of freedom of speech on
controversial issues, and its persistence despite differences between jurisdictions in the manner and extent of free
speech protection.
Keywords: free speech; flag burning; Australia; New Zealand; United States
Arguments around the importance of freedom of speech1 in liberal democratic societies are
prolific, widely discussed (e.g. Baker, 1992; Barendt, 2005, pp. 6–22; Brison, 1998; Heyman,
2008; Richards, 1999; Scanlon, 1972; Waluchow, 1994) and have generated a broad con-
sensus in favour of its protection. In addition to this broad philosophical and theoretical
recognition, the importance of protecting freedom of speech is recognised in international
law, as expressed by Article 19 of the International Covenant on Civil and Political Rights
(ICCPR). The ICCPR, however, also recognises that the right may be restricted to protect
others’ rights, reputations and security and public order. In most liberal democratic
jurisdictions throughout the world freedom of speech is accorded a high degree of
protection, but is subject to lawful limits to ensure the protection of human dignity
and other countervailing values such as equality ( Barendt, 2005, pp. 59–70; Coliver, 1992,
p. 4, pp. 75–263).
Disagreements over where to draw the line between speech that ought to be
protected and speech that might justifiably be regulated persists, both within and
across jurisdictions. This is hardly surprising and is perhaps an inevitable and irresolv-
able conundrum. Nevertheless, the form of these disagreements can tell us much about
the ways in which freedom of speech is understood and appreciated in political cul-
ture.2 In this article I investigate whether, and the extent to which, contemporary
political culture in liberal democratic states is cognisant of the importance of freedom
of speech in relation to a particular kind of expression. Further, I investigate whether
the views expressed in political culture around freedom of speech are consistent,
regardless of – indeed apparently in spite of – divergent institutional mechanisms for
its protection. I focus on three jurisdictions: Australia, the United States and New
Zealand.
© 2011 The Author. Political Studies © 2011 Political Studies Association

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K AT H A R I N E G E L B E R
I focus here on one example of a type of speech that generates passionate public debates:
flag use. More common descriptors are ‘flag burning’ or ‘flag desecration’. However, as I will
show here, the use of the flag as a form of political expression can include activities other
than burning or desecrating the flag.
The analysis will show, first, that public responses to flag use as a medium of political
expression are consistent across jurisdictions, despite the divergent institutional mechanisms
in those jurisdictions for protecting free speech and regulating flag use. This consistency is
remarkable, given the otherwise marked differences elucidated. Second, public responses to
flag use as a medium of political expression demonstrate that in political culture the
meaning, import and effect of freedom of speech are poorly understood. This is evinced by
the evident disjuncture between the legal status of flag use as a protected form of speech and
the cultural disapprobation levelled at some kinds of flag use.
Third, across all three jurisdictions, negative public responses to flag use are selectively
applied. That is to say, disapprobation and opprobrium are selectively directed at
particular types of expression that use the national flag; indeed, they are viewpoint based.
It is only a particular viewpoint that suffers public censure, not all flag use. It appears
that the likelihood of an instance of flag use suffering public censure relies not at all on the
question of whether the flag is defaced or mutilated or desecrated. This is another reason
why the term flag use is apt. The national flag is commonly, even routinely, mutilated and
mishandled in some kinds of flag use that generate little or no public censure.
Moreover, where views in favour of the nation are expressed, no matter whether the flag
itself is physically altered or destroyed and no matter how virulently exclusive the expres-
sion, public attitudes tend to tolerate them. By contrast, where views critical of the nation
are expressed, no matter whether the flag itself is defaced, no matter the subject matter of
the political expression and no matter the legitimacy of the claims of the speakers, they tend
to be subjected to public censure. In these instances, deeply held antipathies are expressed
towards speech utilising the medium of a national flag.
This means that within political culture there is considerable evidence that the public
poorly understands the nature of flag use as a vehicle of political expression. This lack of
understanding has implications for freedom of speech more generally, because it exposes its
fragility on controversial issues.
Flag Use as Speech
The first assumption that needs to be clarified in making this argument is whether flag
use can be regarded as a type of speech. There are two, interrelated approaches to
answering this question: the first is phenomenological and the second legal. From a
phenomenological perspective, the kinds of flag use to be discussed in this article appear
relatively uncontroversially to be categorisable as ‘speech’ where speech is intended to be
inclusive of symbolically expressive conduct. There is a long-standing literature in which
a bright distinction between speech on the one hand, and all conduct on the other, is
accepted as philosophically untenable. In this literature it is acknowledged that speaking
is an act in and of itself,3 and that it can (under certain circumstances and in particular
contexts) do certain things. It is also acknowledged that it is possible that ‘speech’ can
take place through acts other than purely verbal ones. In particular, conduct that involves
© 2011 The Author. Political Studies © 2011 Political Studies Association
POLITICAL STUDIES: 2012, 60(1)

F L AG U S E A N D F R E E S P E E C H
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the use of non-linguistic symbols ought to be understood as speech ( Barendt, 2005,
p. 78).
To this phenomenological perspective can be added a legal one. As will be discussed
below, many courts, including the Australian High Court and the United States Supreme
Court, have acknowledged that people can communicate ideas through means other than
purely verbal ones. So, for example, in Australia the entry of protestors into a duck-shooting
area was considered to constitute political expression,4 and in the United States the wearing
of black armbands to protest against the Vietnam War was considered to constitute speech
protected by the First Amendment ( Barendt, 2005, p. 79).5
Since the focus in this article is on conduct employing the medium of a national flag, I
argue that this can be seen as symbolic, expressive speech. The national flag is a clear symbol
of nation, and its use in all the circumstances detailed below is intended to convey a
viewpoint about that nation, or more specifically about certain policies being pursued, or
policies that the speakers think ought to be pursued, by that nation. There are many ways
in which a nation’s flag can be used as a medium of political expression. It can be used to
express national pride, such as when athletes drape themselves in the flag to celebrate
success in a sporting event, or fans use a flag to cheer on a national team in an international
competition. These are relatively innocuous and widely accepted forms of expression.
However, less innocuous expressions of national identity can also involve use of the flag.
For example the flag was used as adornment during race riots at Sydney’s Cronulla beach
in December 2005 (Noble, 2009, p. 2). People of Anglo descent wore the flag around their
shoulders and attached to their clothes, and in temporary tattoos displayed on their skin,
while participating in verbal and physical expressions of violent and racist exclusion of the
Middle Eastern Other from their conception of nation. The flag was used as a medium for
expressing an exclusive affirmation of national pride (Marr, 2007, pp. 67–8; Noble, 2009;
Poynting, 2007). In both these examples – of inclusive and exclusive views of national
identity – the flag was used in an undamaged form.
The national flag can also be defaced or manipulated to be used as a form of political
speech, and again these uses of the flag can be both positive and negative. Examples...

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