Sen. Kyl, “the Freedom to Offend,” and Flag Desecration

I appreciated Sen. Kyl’s recent op-ed on “the freedom to offend”:

Last month at the United Nations General Assembly, several Muslim-majority countries pushed for the implementation of a so-called “blasphemy ban,” with countries like Iran arguing that religiously insensitive language should be classified as “hate speech” and banned under international regulations.

The U.N rightly did not enact this unprecedented attack on one of our most fundamental rights –- at least for now.

Yet, the fact that such an outrageous proposal could even be seriously considered speaks volumes about the fierce global debate underway regarding the proper bounds of free speech in the 21st century. It’s a conversation Arizonans should watch with great interest, because it deals with our most fundamental of rights.

“What is freedom of expression?” the author Salman Rushdie once pondered. “Without the freedom to offend, it ceases to exist.” And he is correct. The heart of this debate mostly turns on whether or not individuals have the right to say or write things that might offend others. In America and across the Western world, we firmly believe that, yes, individuals do have that right….

I hope this means Sen. Kyl has changed his views on whether we should allow bans on flag burning; he voted for a constitutional amendment that would allow such bans in 1995, 2000, and 2006, and defended such an amendment in Congress in 1995. (Note also that the 2012 Republican Party platform continues to call for bans on “desecration” of the flag, though that is likely not Sen. Kyl’s doing.)

Note that Sen. Kyl isn’t even taking the view that words should be protected but nonverbal expression shouldn’t be — he says that publishing cartoons should be protected as well. I suppose he might take the view that verbal and pictorial depictions should be constitutionally protected even if they convey offensive messages, but symbolic expression should be punishable if it conveys offensive messages. But that doesn’t strike me as a particularly sensible distinction, given that a picture of a flag or of Mohammed and the burning of a flag or a Koran are similar means of conveying messages that some might offensive. As I argued in this article, Anglo-American law has long treated verbal expression and symbolic expression the same, from the Framing era on. And indeed one of the very first Supreme Court cases striking down government action on free expression grounds was a symbolic expression case, Stromberg v. California (1931).

For more on why banning flag burning would endanger other speech as well, see this op-ed.

UPDATE: Note that at least one Senator has indeed changed his position on this issue — Senator Mitch McConnell supported an anti-flag-burning amendment in 1990, but has opposed it since. According to Roll Call, May 31, 1993, “in an unusual admission, [Sen. McConnell] said that, of all the votes he had cast in his tenure, there was none he regretted more than that on flag-burning.”