What Are Human Rights? (35): Freedom of Expression is Freedom of What Exactly?

Another way to frame the question in the title of this post is: what falls under the header of “expression”, and what not? Only if something is justifiably called expression can it enjoy the protection of the right to free expression. I’ll argue below that “expression” covers more actions than the ones we intuitively classify under that concept. Hence, freedom of expression protects more than we think it protects.

And yet, it’s not because something is expression that it automatically enjoys protection. Some actions which we readily classify as “expression” are not and should not be protected by freedom of speech. In other words, freedom of expression covers more and at the same time less than we think.

The obvious type of action that is covered by the right to free speech, and the type that represents the large majority of expressive actions, is speaking and writing in day-to-day language. Such actions enjoy a prima facie protection by the right to free speech. Nothing special about that. However, the right also applies to other expressive actions, ones that do not involve speech or writing in ordinary language:

• some non-linguistic means of expression, such as visual art
• some forms of protest such as the burning of a draft card, a flag or a cross
• pornography
• the display of symbols (e.g. a swastika)
• etc.

These types of expressive actions can also claim protection in certain circumstances.

So, some things which are not readily identified as speech are nevertheless considered as speech acts and receive some form of protection from the right to free speech.

On the other hand, some actions that are unmistakably speech – such as hate speech, incitement etc. – are often justifiably excluded from the protection of the right to free speech.

Free speech therefore covers at the same time more and less than a cursory examination would conclude. However, the broad definition of speech that expands speech beyond mere linguistic acts does create a problem. Non-linguistic expressive actions are hard to delineate. All actions can include an expressive component, and it’s often difficult to determine when an agent intended to convey a message through her actions. So the concept can become too broad, and we risk, as a result, that freedom of speech covers all actions and becomes indistinguishable from freedom tout court. That can’t be the purpose.

Afghans burning a US flag after allegations of civilian casualties during an American attack

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Notwithstanding this problem, it’s obvious that not all linguistic or non-linguistic expressive actions should enjoy protection by the right to free speech. Terrorism is certainly an expressive action, but no one would claim that it should be protected by freedom of speech.

Beside the “freedom of what?” question, there’s another interesting one: “freedom from what?” Usually, freedom of expression, like many other type of freedom, is believed to be primarily or exclusively a freedom from government interference with speech. While that’s an important dimension of freedom, it’s not the only one. Rights have a horizontal as well as a vertical dimension: citizens can also violate each others rights, and hence freedom of expression for example is also a freedom from interference by fellow-citizens. More on the dimensions of human rights is here. More on free speech here.

Human Rights Cartoon (62): Flag Burning, Gun Ownership and Freedom of Expression

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More about flag burning and freedom of speech here and here. More cartoons by Herblock here.

Limiting Free Speech (33): Hanging the Flag Upside-Down

This photo provided by Susan Willems taken July 5, 2009 shows an American flag being flown upside down, a day after it was removed by local police, in Crivitz, Wis. The flag being flown upside down as a protest in a small northern Wisconsin village was seized by police before a Fourth of July parade. The businessman flying the flag claims police trespassed and stole his property. (AP Photo/Susan Willems)

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In a recent news story, it was reported that

an American flag flown upside down as a protest in a northern Wisconsin village was seized by police before a Fourth of July parade and the businessman who flew it — an Iraq war veteran — claims the officers trespassed and stole his property. A day after the parade, police returned the flag and the man’s protest — over a liquor license — continued. …

Marinette County Sheriff Jim Kanikula said it was not illegal to fly the flag upside down but people were upset and it was the Fourth of July.

“It is illegal to cause a disruption,” he said.

Congine, a Marine veteran who served in Iraq in 2004, said he intends to keep flying the flag upside down.

“It is pretty bad when I go and fight a tyrannical government somewhere else,” Congine said, “and then I come home to find it right here at my front door.”

Flying the flag upside down is an accepted way to signal distress – and the guy claimed he was distressed by something – but it can upset people because it represents disrespect for the flag and for what it stands for (America, freedom etc.).

Essentially this is the same as flag burning, albeit less “expressive”. And the same rules apply (see here), which means that it’s a protected form of speech. The police actions violated the First Amendment and the right to free speech. The only possible rationale for the police actions would a threat to peace and a risk of violence. If flying the flag upside down risks inciting violence, then the police actions could have been justified. But that is hardly likely in the given circumstances. The police justified its actions because Congine was causing a “disruption”, but a disruption, especially a violent disruption, requires more than an upside down flag. All that Congine was causing was offense and annoyance. I’ve stated often enough on this blog that limiting speech because it creates offense turns freedom of speech into a meaningless concept.

The right to free speech cannot depend on it being so banal as to not annoy someone in the population. If a protest speech didn’t get on someone’s nerves, it would be pointless. Ed Morrissey (source)

More posts in this series.

Limiting Free Speech (20): Flag Burning and Flag Desecration

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Flag burning (or other types of desecration of national flags) is a form of speech. It may not be a very refined or profound expression of opinions or ideas, but it is an expression nevertheless. Flag burning expresses disgust and hatred for a certain country or a country’s government and policies. It’s typically a very emotional form of speech, devoid of rational argument and reduced to simplistic slogans, and most often used in a setting of mass protest.

Given that it is a form of speech, it should, a priori, enjoy the protection of the right to free speech. However, in certain exceptional circumstances there’s a rationale for prohibiting it. It is a form of hate speech, and the rules governing limitations of hate speech apply here as well. In a nutshell: hate speech can be prohibited when it incites violence.

Now, it’s not impossible to imagine cases where flag burning can incite violence (burning the flag of Israel in front of a surrounded Jewish enclave when a pogrom is imminent, for example), but I guess that most cases of flag burning are much less harmful. So a general law forbidding flag burning doesn’t seem justifiable. There have been several attempts in the U.S. Congress to vote for an Amendment to the U.S. Constitution to allow a ban on flag burning:

On June 27, 2006, the most recent attempt to pass a ban on flag burning was rejected by the Senate in a close vote of 66 in favor, 34 opposed, one vote short of the two-thirds majority needed to send the amendment to be voted on by the states. (source)

Much of this is of course political posturing of politicians trying to be the most patriotic. Given the rarity of flag burning in the U.S., it’s also a typical example of a solution in search of a problem.

Those who would burn the flag destroy the symbol of freedom, but amending the Constitution would destroy part of freedom itself. Richard Savage (source)

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The fact that patriotic people are offended by flag burning isn’t a sufficient reason to ban it. (I’ve argued here against a right not to be offended).