Andrew L. Urban.
Burning the flag is not free speech, it’s hate speech. That statement reflects both sides of the argument about criminalising flag burning, as proposed policy by Liberal Leader Angus Taylor. And in this case, both sides can claim to be right. Or partly right…or partly wrong. But burning the flag is not just disagreement.
Let me start by stating my own immovable view: burning your country’s flag is hateful (as is the burning of any flag). It’s an act of hate perpetrated on the most powerful symbol of the nation. You can’t disguise that self-evident fact. Burning is the violent, ultimate, total destroyer of the object representing the country. It is always political, so you can also argue that it is a political expression of general disagreement. These two opposing views are often expressed in the way countries manage flag burning in the public square.
In Hungary for example (where I come from), publicly burning or otherwise desecrating the Hungarian national flag can constitute a criminal offence.
The relevant provision is Section 334 of Hungary’s Criminal Code (Act C of 2012), titled “Violation of a national symbol”. It provides that a person who, “in front of the public at large,” uses an insulting or degrading expression concerning Hungary’s national anthem, flag, coat of arms or Holy Crown, or otherwise desecrates them, commits a misdemeanour punishable by up to one year’s imprisonment (same as Taylor’s proposed law), provided no more serious offence applies.
But it is not simply a blanket prohibition on anything disrespectful involving the flag. Hungary’s Constitutional Court has previously required the offence to be interpreted consistently with freedom of expression. In a major 2000 decision, the Court said that merely expressing a negative opinion about a national symbol, or using it in scientific criticism or artistic expression, should not automatically constitute the offence.
One particularly interesting comparison for the Australian debate is Germany: Germany protects its flag through a criminal offence, but simultaneously has a very strong constitutional guarantee of freedom of expression. That makes the question of how a flag-burning prohibition can coexist with political protest rights particularly relevant to the Australian constitutional issue.
In the US, flag burning as political expression is constitutionally protected under the First Amendment following Texas v Johnson (1989) and United States v Eichman (1990). This position is at odds with the rest of the Americas, Asia, most countries in Europe except Denmark; burning the Danish flag is generally legal, while public desecration of certain foreign flags can be criminal.
The Aboriginal and the Torres Trait Island flags are not national (notwithstanding the displays alongside the national flag under Labor political presentations), but how should the law consider the burning of these flags? How would the general public? Would such an act be considered a matter of free speech? Or racist violence against minorities?