You can burn the American flag in America

I don’t know if it is legal to burn the American flag in India. Even if it is not currently illegal, the Indian government can certainly pass a law banning the burning of the American flag. It can do so, even though nominally the right to free expression is protected by the Indian constitution, there are so many exceptions to that right that in India, a “constitutional right” is a meaningless concept. There is, for example, an exception for “Friendly relations with foreign countries” under which the Indian government can ban the burning of American flags in India. It is, of course, illegal to burn the Indian flag in India.

But the point is, it is legal to burn the American flag in the United States. It is legal, because their constitution recognizes that right. Because it is written in the constitution, no government, federal, state or city, can pass a law banning flag-burning. They’d have to pass a constitutional amendment just to make flag-burning illegal. In fact, it was tried and it has consistently failed to pass.

Many advantages flow from the fact that you can burn the American flag in America. When a foreign country complains to them and says “Hey, someone from your country insulted our Prophet. Punish them!” their government can say, “Sorry, we cannot. Our constitution does not let us do it. Hell, we cannot even punish someone for insulting our prophet, sorry, our flag. Tricky things these constitutions can be, you know!”

In other countries, when people demand bans on books, they say, “This book should be banned because it hurts our feelings. You are not banning this book only because we are a poor oppressed minority and you are racists. Would you have tolerated it if someone insulted your God like this?” In the US, they cannot say this because the answer to that would be “Yes. We have to. ” In other countries, there is an entire industry devoted to feeling insulted. Politicians compete with one another to whip up frenzies against imagined insults. The demand for police action against those who insult this religion or that gets them votes. In the US too, there are some politicians who try, but the whole thing is pointless because ultimately, the government cannot do anything about it, and the government is obliged to protect the one who insults against physical attacks from those he insulted.

I’ve heard it said that the right to free speech cannot be absolute, that the government should have the power to make exceptions to this right on a case by case basis, on pragmatic grounds. But it seems to me that the right to free speech in the US works only because it is absolute. If we make an exception for one case, people cite it and ask for an exception for themselves too. If the government can restrict free speech by passing laws, politicians will get elected by promising their constituents that they will expand the restriction to cover their concerns too.

Free speech survives only because it is an absolute right. The right to burn the American flag secures all other rights.

30 thoughts on “You can burn the American flag in America

  1. Hi Ravikiran
    I remember in my youth there were many people calling for a constitutional amendment to ban flag burning. At first I was quite sympathetic to this line of thought because I could not imagine not disliking intensely anyone who would burn the flag and saw no reason to let them have the right. But I read somewhere something that went like, “You know you live in a great country if the people feel so self-secure that they’ll let you burn their flag.” Put that way, I couldn’t disagree.

  2. Ravi & Michael,
    Though the First Amendment is the closest to “absolute”, I really don’t buy the argument of it being absolute. A restriction in the form of ‘public good’ and a differentiation in the form of political speech vs other speech are things that seem to suffer from a case by case analysis. Maybe am just watching too much of FOX these days.

    And in this context, I totally loved the movie “People vs Larry Flynt” for the exact reason of an ‘absolute right’.

  3. You can think of any constitutional dictat/right as a “law” that requires a large majority to put into place.
    In that sense, the right is really not absolute.

    For e.g. why can’t politicians still get elected saying they’ll pass a constitutional amendment?
    I’d in fact suggest that such a thing would be very easy in India. See for e.g. the very recent (relatively speaking) constitutional amendments for the Mandal case.

    The reason why it is near absolute in the US is an overwhelming respect for tradition, including constitutional tradition, by a large section of the population, particularly the south and midwest.

    In a larger sense, allowing a majority to change what should be absolute rights is one of the principal moral limits of democracy.

  4. Any promise to amend the constitution would not be credible because it is so friggin difficult to amend the constitution in the US. Look, in practice, I’d guess that most Americans would actually support a anti flag-burning amendment. But even then they haven’t managed to get it passed. What chance would there be of getting some other restriction on free speech passed as a constitutional amendment?

    I accept that respect for constitutional tradition is an important part of the American psyche. But, I mean, even if you decide to develop a respect for the Indian constitution, do you have any idea what the damn thing says? I have a better intuitive grasp of the American constitution than the Indian one. I am told that the Supreme court can force-fit any verdict it wants into article 21 of the constitution.

  5. But, I mean, even if you decide to develop a respect for the Indian constitution, do you have any idea what the damn thing says?

    That is so true.

    But looking at the apparent ease with which demcracy in India is able to change the constitution makes me double-think the importance of it in the Indian Scheme of things even if it wasn’t ambiguous.
    It is a testament to the mettle of Indians that we have achieved so much while suffering under a democracy with such a weak constitution. Look at other subcontinent nations; look at Africa; and you can perceive how dangerous such a governance system is.

  6. I don’t think there is any law in the US that explicitly allows flag-burning. It is allowed as part of the freedom to express. But there are limitations on freedom of expression and these have been reached in the courts. So Gaurav is correct. This is a matter of debate as to whether a court can impose and dispose off limitations rather than legislators. I would rather have legislators set them because they are the representatives of the people. 70% of Americans are against flag-burning. If they can’t get their way, I wonder if it is democratic at all. After all Jefferson, wanted a new set of laws every 10 years (which is very radical indeed).

    yum yum

    PS: Gaurav, you shouldn’t call yourself ‘Gaurav (not Sabnis). Are you any less? Just sign with your full name.

  7. Ravikiran: I apologize for having read yumyum’s comment, but it lends credence to my earlier comment about how Indians would have easily amended the constitution to make flag burning illegal.

    The key to success (in safeguarding rights etc) basically is to use the stupidity of people like YumYum to good effect. As I said earlier, it is blind respect/faith for tradition and not logic which is keeping the US constitution safe.
    Though I suppose one cannot discount the fact that there is also a strong (as in influential) intellectual polity in the US with classical liberal roots.

    Interestingly the US always had both of the above conditions. While India does not have an influential classical liberal polity, it does have a majority with a devoted faith in tradition as well as blind emotional faith in stuff like socialism. All it takes is to catalyze these important and necessary factors to the creation of a free society in a way the freemasons did many centuries ago in the U.S.

    The simplest thing would be to do away with democracy, but I think it requires a technological mileu that is still a few centuries away.

  8. What does the Indian flag represent? The Government of India? Or the people of India?

    Who is the Government to pass diktat on what is appropriate use of the flag?

    Fuck the elected leaders, and the stupid masses…what right have they to place restrictions on the actions of the educated?

    The middle class should organise to put an end to the trampling of our rights by the uneducated and their leaders. We should take the country back, and assert our dominance.

    The masses have no right to trample on our freedom. The masses can have their government, but the government should never be allowed to encroach upon our freedom. This message needs to be got out.

  9. Gaurav,

    No non-commercial speech against anyone is a crime in the U.S. – that includes hate speeches by the KKK and other white supremacist groups, as well as anti-semetic groups. The only kinds non-commercial speech that will be considered criminal is libel, slander and obscenity ( I think you might have mistaken the European ban on pro-facist/nazi groups.


    I agree with Ravikaran here, if what you say is true, then why do we need a constitution?? The point of a democracy(in my opinion) is to protect the individuals rights – hence the “minority” has to count just as much as the “majority” (not only a minority or majority of voters, but a minority and majority of ideologies too)- because if you have it any other way, then you will give the government the power to suppress the minority, using the majority as an excuse. Hence, I think that in a democracy, everyone’s rights have to be asserted – everyone has to count equally, whether they are in the majority or the minotiry – and this is where the courts and the constitution come into play – they can be objective about decisions to be made – and follow the law (as described in the Constitution) without caring about the majority or the minority.

  10. six_times_seven, do you always have to prostrate before ravikiran before making comments here? Since you made personal comments about me I guess you are fair game now. Your comments about strong/influencial intellectual class of liberal traditionswas completely hilarious.

    Jefferson was talking about changing the constitution to the needs of the people. Institutions gather dust and decay when they don’t change with the times and the needs of the people whom they are supposed to serve. A need for 2/3rd majority is a good enough safeguard. In a real democracy anything that can pass 2/3rd majority must have overwhelming support.

    I remember quite well that burning of crosses if construed as offending to blacks is illegal. There was a judgement passed about it.

    At one point of time the US was a beautiful socio-political experiment (a very flawed one at that). But the system is completely perverted and in decay now. The current consitution is very different from the original one.

    The American media is a top champion is self-censorship.

  11. Ravikiran, I totally agree with the point you are trying to make. Just one thing: I will be a bit wary of giving the US top grade in enabling an absolute freedom of speech. That is not clear at all with all this “culture war” going on and all sorts of people trying to enforce their own definitions of “decency” etc.

    For instance, read this.

  12. Yum Yum’s name links to an interesting piece by Monbiot, which illustrates the evils of the State.

    Yum Yum: Is self-censorship the same as an exception to a fundamental right? Can you be sent to jail or shut down if you don’t self censor in the United States? In Bombay ofcourse if you don’t self censor especially according to the Divine guidelines of the haggard tiger of Kalanagar you can have your teeth bashed in. And the government won’t even do anything about it, because the Home Minister is a friend of a friend.

    If being able to change the constitution easily was such a desirable trait then why isn’t India one of the most progressive countries in the world? We have some 86 amendments now right? Some Latin American countries have had 3 or 4 constitutions in the past 200 years of their independence? Their government’s by your measure must be the beacons of progressive thought and public service.

  13. Gautam, There is harassment in the US too. There are many examples and you will find them if you search well enough. This harassment is done by many parties and sometimes is very subtle. It’s no different from other parts of the world.

    The US is not that progressive either. Canada is much more progressive and they have been tinkering a lot with their constitution. The problems associated with India and Latin American countries have different causes other than constitution. All these countries were under brutal colonialism until recently and even now many suffer from foreign intervention with the result that political evolution is stunted rather than being allowed to take its natural progression.

    India has averted many a disaster by being flexible. From the anti-Hindi riots, state’s rights campaign, privy purses and so many other things we are slowly learning and adapting. Maybe in 200 years we will become orthodox like the Americans. After all the US has subtly changed its consitution and power structure over the past 200 years.

  14. Rishib ,
    Thanks for link.
    Actually I had seen wiki but did not find it illuminating, as there were so many ifs and buts in that.
    There were a series of post on (similar in tenor to this post), I found myself broadly agreeing with them.

    One of the reasons that Indian constitution is so complicated is because of competitive politics (that may explain “right of education”)

    But at another there is something fundamentally wrong with Indian constitution. It may be be becaue majority of our founding fathers imagined a interventionist state. I think it was a mistake

    And yet for some reason I feel uncomfortable, with this post (as well deesha)

    May be the condition of free speech is “necessary but not sufficient” for civilization


  15. First of all I do not consider the Indian version of the democracy as democracy at all.

    In the Indian version, I do not elect who governs the Country.
    So this leads to all kinds of horse trading and so we are all corrupt.

    In the Indian version, I do not have a way to represent my displeasure.
    Do I have a way to revoke “my” vote??
    Do I have a way to recall “my” representative??
    So this helps all kinds of horse trading and so we are all are corrupt.

    So what we have is a democratic system that promotes corruption.

    So when you have a system that promotes corruption, how does it matter whether it is a democratically corrupt system
    or dictatorially corrupt system?

  16. Would you say there should be a legislation that will punish this judge? If so of what kind? Or is this to be viewed as okay in the interest of free speech? Thanks.

  17. I tend to use standard English phrases rather than tying myself up in knots. If I was able to communicate myself, I think I have done my work.

  18. Agree with you. Flag burning is just a mode of expression and is in no way an unpatriotic behaviour. Wonder why it is banned then..

  19. Hmmm…
    I remember going to the all india radio studio in mumbai when a friend used to do the night shift.
    This was a few years ago… i remember the white card paper stuck over the Radio Jockey’s console which listed banned songs.
    These ranged from regular stuff like eminem to the latest george michael song ‘Shoot The Dog’ which had a animated video satirising M/s. Blair and Bush . ‘Friendly relations with foreign countries’ of course……

  20. Though I am generally content with the practical levels of liberty that are available to me here in the U.S, even as a an alien, I am not happy with my legal rights. Any citizenship law which requires me to profess a belief in god, is not quite there yet.

    I do get your point about how the american declaration of independence as well as the constitution is more understandable than the Indian one, I feel that India scores on practical secularism in ways the US does not.

  21. The flag’s use in lurid advertisement: This form of desecration MUST stop!

    Patriots: the current movement to outlaw flag burning, as well-intentioned and relevant to current affairs (such as our President’s War on Terrorism), sadly does not go far enough.

    Old Glory should really be saved from the crass packaging material and TV graphics that litter homes and highways across this great land. The flag is continually and outrageously exploited to promote crummy breakfast cereal, broadcast news, sporting events, and Japanese made cars. Someone even told me they saw the flag plastered all over the box that a pornographic video came in…and it was homosexual pornography at that!

    Consider the US Postal stamp. While deluded moderates in Congress push for an outright ban on flag burning, millions of fetal-sized flag stamps are literally trashed and likely burned everyday with an assist from a quasi-government agency: The US Postal Service.

    Take the American flag of all postage stamps now! Flag stamps have created a quiet, unseen epidemic of flag desecration for years that most Americans are party to but unaware of. Until now….

    Go to your dumpsters, patriots, your recycling centers, and look at your TV sets. See how Old Glory continues to be co-opted by Wheaties, FOX News, World Wide Wrestling, and Toyota. Our national symbol is being abused as some sick device to steer us to “patriotic” purchases, and then discarded along with the bubble wrap and packaging peanuts once vile merchants get our cash. It must stop now! Or at least in time for the 4th of July holiday.

    Banning flag-exploitation in American advertising: now that’s a cause I’d hitch my star-spangled wagon to.

  22. I think it is a discrace to burn the American Flag, real thing made in US hand made, but I do not think it is a total discrace to burn an american flag made in china, or japan. Have you ever looked on the back of the small flags how many are really made in the us. Even if I wouldn’t we have the right because of freedom of speech. That means if I buy the flag and burn my purchace on my property that makes it freedom, now if I can’t, which directly goes against the first and fourth amendment, what kind of freedom is that?

Comments are closed.