A Survey of Flag Desecration Laws Around The World
By Mikka A. Burrell
We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by . . . according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents. –Justice William J. Brennan Jr.
Introduction
Flag desecration is defined as “the act of intentionally destroying, damaging, or mutilating a flag . . . usually done in public and often destruction is caused to a national flag.”[1] Perhaps the most recognizable (and often most controversial) form of flag desecration that people take part in is flag burning. Flag burning has prompted intense debate in the United States; Some defend the practice as a quintessential form of dissent protected by the First Amendment to the U.S. Constitution while others have argued the practice is tantamount to burning the freedoms that the flag represents and is distinguishable from free speech in that it is a physical act rather than the actual utterance of an idea or opinion.[2] Abroad, some countries criminalize flag desecration while others, like the United States, permit it as a form of free speech.
Countries Where Flag Desecration is Legal
A. United States of America
In the United States, flag desecration is an activity protected by the First Amendment to the United States Constitution, which asserts that “Congress shall make no law . . . abridging the freedom of speech . . . .”[3] However, the First Amendment’s arguably clear mandate has not stopped state and federal lawmakers from attempting to regulate the practice of flag desecration. Thus, the Supreme Court of the United States has had several opportunities to rule on the issue. In the landmark case of Texas v. Johnson, the Supreme Court held that a Texas statute criminalizing the desecration of the American flag violates the First Amendment.[4] Writing for the majority, Justice William Brennan noted that the Court has “long recognized that [the First Amendment’s] protection does not end at the spoken or written word”[5] and extends to symbolic speech, including flag desecration.
In response to the Supreme Court’s decision, Congress passed the Flag Protection Act of 1989, which made it a crime punishable by fine or one year of imprisonment if one “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.”[6] Nevertheless, the Supreme Court struck down the legislation as unconstitutional in United States v. Eichman, holding that government's interest in preserving the American flag as a symbol did not outweigh one’s right to disparage that symbol through expressive conduct.[7]
B. Australia
Like Canada, Australia does not have laws prohibiting desecration of the Australian flag. However, the act itself of flag desecration must be otherwise compliant with Australian law. In Coleman v. Kinbacher & Anor, an Australian appellate court upheld a protestor’s conviction of disorderly conduct. The appellant challenged his disorderly conduct conviction for burning an Australian flag in a public park on Australia Day in 2002 to protest against the government's immigration policy.[8] The appellate court upheld the appellant’s conviction not because of the nature of the speech, but because the size of the fire, the use of fire accelerant, and the public nature of the act indeed constituted disorderly conduct.[9]
C. Canada
Canada has no laws prohibiting the desecration of the Canadian flag. Like the United States, Canadian law considers flag desecration (including burning, stomping, shredding, or spitting on the flag) a form of speech protected by the Canadian Charter of Rights and Freedoms.[10]
D. Denmark
Denmark’s laws regarding flag desecration represent perhaps the most unique approach to the issue. Danish law permits the burning of its own flag, the Dannebrog, but expressly prohibits the burning of the flags of foreign nations as well as the flags of the United Nations and European Union.[11] Danish lawmakers created this hybrid approach as a matter of foreign policy, fearing that permitting the burning of foreign flags in Denmark could provoke war.[12]
Countries Where Flag Desecration is Illegal
A. Israel
In July 2016, the Israeli legislature passed an amendment to Israel’s Flag and Emblem Law that makes burning the Israeli flag a criminal offense punishable by a $15,000 fine or up to three years imprisonment.[13] Previously, the maximum penalty for flag desecration under Israeli law was a roughly $78 fine or up to one year imprisonment.[14] The amendment now also gives Israeli courts discretion to deny certain state-funded benefits to individuals convicted of flag desecration for up to six years.[15]
B. Saudi Arabia
The flag of Saudi Arabia contains an inscription of the shahada, which is the Islamic declaration of faith. Thus, desecration of the flag of Saudi Arabia is not only illegal, but considered blasphemous.[16] Saudi Arabia’s strict attitude towards its flag has resulted in several controversies. During FIFA World Cup 2002, Saudi officials objected to the printing of the country’s flag alongside flags of other participating nations on the official match ball, believing that kicking the flag on the soccer ball was unacceptable.[17]
C. France
In France, flag desecration carries heavy fines and the possibility of imprisonment. Specifically, the French criminal code asserts that the destruction, damage or use of the flag in a degrading manner in a public place, as well as the recording of such acts even if committed in a private place, is punishable by a fine of €1500, or about $1900 USD.[18] Additionally, the act of publicly desecrating the national anthem or the national flag during an event organized or regulated by public authorities is punishable by a fine of €7,500, or about $9,500 USD.[19] If committed during a meeting or gathering, the offense carries a punishment of up to six months of imprisonment in addition to the €7,500 fine.[20]
Will there be a policy shift in the U.S. under the new administration?
The American discourse on flag desecration has been in recent months by none other than the newly inaugurated President Donald Trump, leading some to wonder policy change on the issue will come with the new administration. Just weeks after winning the general election, Trump tweeted, “Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!”[21] Critics were quick to point out that the Supreme Court has ruled definitively on the issue, and some even burned American flags in direct response to the then-President elect’s statement.[22] With a new administration now officially in office, it remains to be seen whether the government will renew attempts to regulate flag desecration.
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[1] Flag Desecration Law and Legal Definition, UsLegal, https://definitions.uslegal.com/f/flag-desecration.
[2] Frequently Asked Questions, Citizens Flag Alliance, http://www.citizensflagalliance.org/faq.
[3] U.S. Const. amend. I.
[4] Texas v. Johnson, 491 U.S. 397 (1989).
[5] Id. at 404.
[6] 18 U.S.C.A. § 700(a)(1) (West).
[7] United States v. Eichman, 496 U.S. 310 (1990). Specifically the Court analyzed the government’s argument under a “strict scrutiny” standard of review.
[8] Dan Meagher, The Status of Flag Desecration in Australian Law, 34 Univ. W. Austl. L. Rev. 73 (2008).
[9] Coleman v Kinbacher & Anor (Qld Police) (2003) QCA 575 (Austl.)
[10] Is It Illegal to Burn the Canadian Flag?, FindLaw.Ca, http://constitutional.findlaw.ca/article/is-it-illegal-to-burn-the-canadian-flag.
[11] Jonathan Jones, Blaze of Glory: The Grand Tradition of Burning the American Flag, Guardian (Nov. 30, 2016), https://www.theguardian.com/world/2016/nov/30/blaze-of-glory-the-grand-tradition-of-burning-the-american-flag.
[12] Id.
[13] Flag Burners Now Face Up To 3 Years in Jail in Israel After Knisset Amends Law, Jewish News Service (July 19, 2016), http://www.jns.org/news-briefs/2016/7/19/flag-burners-now-face-up-to-3-years-in-jail-in-israel-after-knesset-amends-law#.WD2XMPmLTyQ=.
[14] Id.
[15] Id.
[16] Wikipedia, Flag Desecration: Saudi Arabia, https://en.wikipedia.org/wiki/Flag_desecration#Saudi_Arabia.
[17] Id.
[18] Nicole Atwill, France Decree on Flag Desecration, Library of Congress (Sept. 20, 2010), http://www.loc.gov/law/foreign-news/article/france-decree-on-flag-desecration.
[19] Id.
[20] Id.
[21] Donald Trump (@realDonaldTrump), Twitter (Nov. 29, 2016, 3:55 AM),
https://twitter.com/realDonaldTrump/status/803567993036754944.
[22] John Samples, Why Trump’s Flag-Burning Tweet is Disturbing, Newsweek (Dec. 2, 2016), http://www.newsweek.com/why-trump-flag-burning-tweet-disturbing-527208