Expression and speech are treated differently in America. People think we have freedom of speech and assume we also have freedom of expression. Neither is true — free speech exists in theory but is often not honored in the breach. Freedom of expression can be little more than a pipe dream because it is strictly limited by what authorities deem appropriate.
If we assume that the purpose of having free speech is to allow for civil, civic discussion of important issues, then one can conclude that only speech in the service of Reason (as defined by authorities) is protected while speech in the service of Unreason (again, as defined by authorities) isn’t. Speech or expression which accepts the authority of tradition is regarded as neutral and reasonable while anything contradicting it is unreasonable.
What types of speech are condemned? A popular target is any mode of expression that goes against the traditional cultural norms — for example, sit-ins, nudity, or flag burning. This is how the category of obscenity was created by judges seeking a basis for limiting certain messages and certain modes of expression despite the First Amendment. There is no constitutional basis for declaring certain expressions obscene, and no politician or judge has managed to create a clear, fair definition of it.
Similarly, some forms of speech are labeled as “expressive acts.” If authorities don’t like or simply don’t understand the message, then the action takes precedence over the expression and the power of the law is brought against it. Thus the Supreme Court declared constitutional an Erie, Pennsylvania, law against nude dancing. This means of expressing sexuality and sexual messages contradicts the traditional Christian order of how sexuality is to be restrained and kept in check; ergo, it lies outside the boundaries of free speech protection.
Identity & Order
What does this have to do with efforts to prohibit the physical desecration of the flag? Quite a bit — remember, the issue is not the issue. People aren’t going to all this trouble just to stop an occasional extremist from setting fire to a piece of cloth. They are trying instead to protect their dominant and authoritative status in society.
Consider a group Los Angeles law students who, in the early 1970s, had just been admitted to the California bar and were attending a swearing-in ceremony to be permitted to practice law in federal district court. Upon being told to raise their hands for the oath, several raised clenched fists.
You can probably guess that the judge went ballistic, just as the protesters expected. How did you know that the judge reacted so badly? How did the students predict the judge’s reaction? Because we all share a culture which assigns meanings to symbols and behaviors. The symbols of the judge — his robe, his bench — have meanings which are supposed to be given respect. The symbol of a raised, clenched fist carries strong political meanings of protest, resistance, and even aggression.
This is why two black Olympic athletes lost their medals in 1968 for raising clenched fists during the playing of the Star Spangled Banner at their award ceremony. The Olympics prohibits political messages and raising fists, although “merely” an expressive act rather than speech, was undeniably political.
Flag Burning
The clenched fists represented a direct, expressive challenge to the authority of the judge and he knew it. By challenging the symbols of his authority and of the United States government, the students also challenged his very identity. Flag burning is similar, representing a threat to established norms of authority, identity, and power.
Moreover, the flag symbolizes not just the “higher authority” of government and politicians, but also the moral and political authority of the nation. For many, this is a core component of the identities they have created for themselves.
A significant issue with “expressive acts” like flag burning or clenched fists is that they are commonly vague and indeterminate. There is no way to clearly identify the exact target of protest or contempt — every spectator will interpret it a little bit differently.
There is also no way to clearly or rationally respond to or rebut the expression. How could the judge have answered the students — point an open hand to the floor? How should people respond to flag burners — stitch new flags in public? Thus added to the perceived challenge to identity is the sense of helplessness when confronted by it, and this contributes to the emotional venom with which people react.
Perhaps as a response to flag burning, offended people should hesitate to seek legislative bans and instead respond by waving the flag. After all, it has been said that the best response to speech you don’t like isn’t censorship but instead more speech. Responding to flag burning may seem difficult, but it's not impossible.
