An independence advocate was found guilty on Feb. 7 of inciting others to burn the national flag, in a ruling that overturned a previous acquittal.
The first ruling determined that Lee Chia-yu’s (李嘉宇) actions were constitutionally protected, while the second found him guilty of destroying the flag “for the purpose of insulting the nation,” and argued that his method of expression was “unnecessary and irrational.” Given the divergent perspectives of the two judges, it is worth considering whether desecrating national symbols is constitutionally protected free speech.
National University of Malaysia researcher Helen Ting wrote in a 2008 paper, “Social Construction of Nation,” that the idea of a “nation” is “a mental construct,” and national identity is “a dynamic, contentious historical process of social construction.” National identity means different things to different people at different times, even within the same borders.
Ting wrote that social actors generally only engage with the “figured world of nationhood” when they are interacting with agents of state institutions or reading about national politics, and these actors internalize and reproduce meaning in this world when they carry out socially constructed activities. This is only one of many figured worlds that constitute the self, and is not the most conspicuous aspect of an individual’s life, except in the case of those in professions that closely follow national affairs, she wrote.
While the nation is an imagined and dynamic concept, the flag is a symbol that is understood to represent “the nation’s core values, condensing the history and memories associated” with it, and “embodying what the nation stands for,” researchers from Queen’s University Belfast wrote in a 2017 paper, “What Do National Flags Stand For?”
Flags represent “group memberships and strong emotional attachments,” and subjectively represent “the soul of a society in terms of symbolic representation of national consciousness,” the researchers wrote. Therefore, it is understandable that people who identify strongly with those symbols would seek to protect them from desecration, while others consider their destruction in protest to be a constitutionally protected form of expression.
The issue of an individual’s right to “insult” national symbols has drawn attention in the sports world. Since August 2016, some NFL players have knelt during the US national anthem out of protest against police violence toward African-Americans. These actions caused an immediate uproar, with some critics arguing that it was insulting to members of the US armed forces, or presenting similar allegations.
NFL spokesman Brian McCarthy in 2016 said that “players are encouraged, but not required to stand during the playing of the national anthem.” Legally there are also no repercussions for not standing during the anthem, even though it is mentioned in the US Code, but the statute is worded as “should” stand, which stops short of “shall” or “must,” a Sept. 26, 2017, Birmingham News article said, citing law experts.
Neither the US nor Canada have laws prohibiting flag desecration — amendments have been proposed in the US, but never passed — and in both countries, flags have been frequently burned, often during anti-war or anti-government protests.
There is no definitive answer as to whether people should be allowed to desecrate national symbols, but not everyone adheres to the same imagined communities or same values espoused by those communities. If citizens are prohibited from protesting a nation through destroying its symbols, it risks opening the floodgates for further suppression of free expression.
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