Flag burning and free speech

Constitution prevents the US from stopping flag burning, as it is a form of political expression given legal tolerance.

Demonstrators can "destroy the flag as part of a peaceful protest" anywhere in the US [EPA]

One irony that the protesters in the Middle East who burnt American flags likely didn’t realise is that if they had done this in the United States, they would have been guarded by the same government they were attacking. Leaving aside the clear violation of the diplomatic immunity of embassies, the violence and the destruction of property, the demonstrators could have destroyed the flag as part of a peaceful protest anywhere in the US. And the American government would have protected them.

The Constitution – as interpreted by an independent judiciary – prevents the US government from stopping this flag burning because it is a form of political expression given wide legal tolerance. Of course, the same Constitution also prevents the government, or anyone else, from halting the production and distribution of the anti-Muslim video that so many in the region find offensive.  

That most of the demonstrators didn’t understand these constitutional limits are part of the cultural gap, too often inflated to a “clash of civilisations”, that bedevil relations between diverse peoples. The internet allows instant communications without an underlying understanding or sympathy for each other’s core beliefs. As a teacher of American government in an Arab country, it is a cause of special sadness.

Secular liberal beliefs

For the young protesters, the video was yet another attack on their religion, an intentional act of disrespect to Muslims in cultures where face and honour are key parts of relationships and identity. Enhancing the impact is an untrusting Arab street that assumes that those in authority control, or allow, or at least know, almost all significant public activities occurring in their territory. 


 Inside Story – Anti-Islam video: A test for
Arab leaders

Even where this may not be apparent, readily believed conspiracy theories are available to fill in any gaps connecting public authorities with political actions. The current violence illustrates the danger from fringe leaders hijacking foreign policy, manipulating parochial publics and endangering vital national interests, as well as precious lives on both sides. 

But Americans don’t start out seeing this as an issue central to political or religious relations with the Muslim world. Instead it is framed as an exercise of free speech; tolerance for expressing extremist opinions that Americans in fact overwhelmingly reject. 

Hate speech is legal in the United States. The Tunisian tweeter who remarked that the US should make abuse of the Prophet as illegal as Holocaust denial, was drawing a parallel that doesn’t exist. Holocaust denial is not against the law in the US, nor is anti-Semitism, or anti-Muslim propaganda, racist pronouncements or falsehoods about religions.

“Freedom for the thought that we hate” in the famous words of a Supreme Court justice is a central commandment in the US’ secular liberal beliefs. While European countries may punish hate speech, including Holocaust deniers, the US’ stress on individual rights, constitutional limits on government and the public’s historic fear of that government, has supported the widest possible legal scope for citizens’ voicing political opinion. 

This has led to allowing acts and talk – as long as they didn’t turn to violence – that in substance most Americans detest. Already mentioned was the highest court in the land allowing the burning of the nation’s iconic symbol, its flag, as a form of political expression. But the ample scope given speech has also included tolerating some pretty vicious denunciations of religions. 

Some years ago, a small right-wing group calling themselves the American Nazi Party applied for a permit to march through Skokie, Illinois, home to a large number of survivors of German concentration camps. The town leaders tried to prevent the group from parading with Nazi uniforms and swastikas on the reasonable presumption that this would cause disorder.

After a number of legal appeals the courts allowed the march, ruling that under the Constitution’s Bill of Rights, officials were supposed to protect this form of freedom of speech, not find ways of discouraging it. Neither side was allowed violent protest; both could express their political views. The hateful message toward Jews that lay behind the march was beside the point. 

Arab political expression

More recently, the current Supreme Court followed similar reasoning, by allowing a group of religious extremists to loudly protest at the funerals of American soldiers who had been killed in action. They were objecting to homosexual rights but, again, the substance of their opinions was not central in the court’s upholding their right to demonstrate, even at a military gravesite. 

“Leaders in the Arab world must realise that their publics are not the only ones that can react irrationally to what are seen as unprovoked attacks.”

While this lofty embrace of individual speech elevates the US in at least its own eyes, it can, as recent events have shown, also antagonise people with different traditions and beliefs. In an age of globalised communications with near-universal access, core beliefs on both sides can be manipulated by marginal political actors with their own radical agendas seeking to undermine numerous compatible interests.

Leaders in the Arab world must realise that their publics are not the only ones that can react irrationally to what are seen as unprovoked attacks.

It may not be totally naïve to hope that this can be both a teaching moment and an opportunity. For these protests sparked by American tolerance of political expression are also an exercise in Arab political expression. They reflect the loosening of authoritarian restraints throughout the region. The noise of rioters is also the sound of the ice cracking from the warmth of the Arab Spring. 

While hardly comforting for American foreign policy they hold out the prospect of Arab public opinion, long excluded from the governing arena and frozen in time, evolving in more democratic directions.

Americans should recall our own generations of experiments – past and present, successes and failures – in finding a balance between expanding political participation and building a just and stable civil society. The emotions of the moment should not be allowed to undermine either the US’ own principles, or its hopes for the region.

Gary Wasserman is professor of government at Georgetown School of Foreign Service, Qatar. Gary received his Ph.D with Distinction at Columbia University. His thesis, “Politics of Decolonization,” was published by Cambridge University Press. He has written for The New York Times, Foreign Policy, and Political Science Quarterly.