It is funny how living in the Unites States affects a person. Here people take an unhealthy delight in being American and winning everything—after all, that is what being American is about. The wherewithal to harness such feelings is unusual for one born into cynicism, weaned on apathy and bred in the sarcasm of Britain; where insults are a mark of affection and the word “fine” is a superlative.
Scots aside, there is also overwhelming pressure to suppress national or religious identity, as England, in particular, has been infected by the post-war European guilt where it is believed that pride in one’s heritage is the thin end of a genocidal wedge. There has been resistance on the fringes, like the isolated instances of greengrocers refusing to label fruit in kilograms, or recently soccer teams wearing the poppy on Remembrance Day. Punishment for such anachronisms—like showing respect to the war dead—is grave, and is meted out by bastions of European integrity such as FIFA.
Despite my stifled upbringing, I must confess a deep, dark secret. One of my favorite rides at Disney is “It’s a Small World,” a throwback to a time before political correctness became intolerant. Celebrating diversity while recognizing difference, those smiling dolls are not homogenous—and there is an understanding that flags have a wholesome, rather than a divisive, effect.
I used to snort at these silly Americans, with hands on hearts during national anthems or chanting “U-S-A,” and the biggest pot of scorn was reserved for the adoration that Americans had for their flag. It was nauseating to such an extent that in the 90’s, when there were anti-USA demonstrations around the world, I dreamt of becoming a supplier of burnable Stars and Stripes to the Middle East. The plan was to have the item pre-soaked in flammable solution. It would come with a box of matches, burn rates advertised on the packaging.
I recognize that such opportunistic entrepreneurial activity on foreign soil is one thing, while the desecration of an American flag in the United States is quite another. In my view, the President-elect is correct in championing a rule change, and the ruling in Texas v Johnson not only was flawed at its very core, but is also completely outmoded. The Supreme Court, by a narrow majority, held that symbolic speech—even if remarkably offensive, like flag burning—is protected by the First Amendment because the outrage of others should not suppress free speech.
The Court’s reasoning was thin in relation to which actions can be considered symbolic speech or expressions of an idea since the analysis requires a backward-looking reasoning at “an intent to convey a particularized message.” More importantly, Justice Kennedy erred in his tortured philosophical reasoning that existence of the flag inextricably enshrines the right to burn it, in that “the flag protects those who hold it in contempt.” In short, he says we should be thanking such vandals for reminding us what freedom is all about.
America needs only to look to Europe of today to see the husks of denatured cultures and lost identities where those seeking a sense of place can only do so among fanatics. As Europe is frightened to assert its history and religion—in 2012, Brussels banned a popular Christmas tree exhibit because it was deemed offensive and this year a band of youths set fire to a Brussels Christmas tree while yelling ‘Allahu akbar’—it looks forlornly over to America and wonders why a country that has not always been a bastion of multiculturalism has harnessed patriotism when it cannot.
It starts with respect for the State and its symbols, which represent ideals that should be upheld, venerated and championed or, as Justice Rehnquist put it, regarded with “mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have.” Secondly, we should aspire to elevate expressive or symbolic speech rather than indulging in trite acts of destruction better suited for third world mobs. Lastly, while one has a right to be offensive, that does not extend to being hurtful—and one cannot fathom how depictions of flag burning contribute to the post-traumatic stress suffered by our veterans, who wore that symbol while risking their lives.
While the objective thinker might be right in thinking that a year in prison and a fine of $100,000 is manifestly excessive, the stigma of a criminal conviction should induce the would-be pennant arsonist to aspire to actual speech.
Robert Garson is Managing Partner of Garson, Ségal, Steinmetz, Fladgate LLP, an intellectual property and international litigation firm in New York. He is also a barrister qualified in England and concentrates on IP and First Amendment matters.