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022 Nlj 7825 Backpage Law Stories Aamodt 22 BACK PAGE LAW STORIes 25 January 2019 | www.newlawjournal.co.uk this: destruction, removal, or desecration Rallying round the flag of national emblems installed by a public authority (eg the Swiss flag, the Swiss coat What laws still govern the desecration of of arms, the cantonal or municipal flags and national symbols? Athelstane Aamodt takes coats of arms) is punishable by a monetary penalty or imprisonment of up to three years. a vexillological tour around the world Stars & stripes Flag-burning in the United States has long been a highly contentious issue. The First Amendment of the US Constitution specifically disallows the abridgement of speech, but there has been and continues to be a debate about which kind of speech is capable of protection. As Justice Oliver Wendell Holmes Jr famously said in Schenck v United States, 249 U.S. 47 (1919): ‘... protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.’ The question as to whether flag-burning was protected under the First Amendment came up for a consideration in Texas v Johnson, 491 U.S. 397 (1989). A protester had burnt a flag, which was illegal under Texan law, at the 1984 Republican Convention in Texas. The Supreme Court held 5-4 that flag-burning was protected under the First iStockphoto/Niyazz © Amendment. The case is particularly unusual in that Justice Antonin Scalia, a notoriously ast November, the Spanish comedian with the disorder that can result from such conservative justice, joined with the majority Dani Mateo appeared in court in Spain behaviour (harassment, harm or distress) while Justice John Paul Stevens, a liberal after blowing his nose on the Spanish rather than the Act in and of itself. This justice, wrote a dissent—perhaps originating Lflag during a comedy sketch on would presumably extend to the burning of in part from his active and distinguished television, leading to a complaint from the the Union Flag in certain circumstances. service in the US Navy in World War II. National Police Union that he had committed Spain is not the only country in Europe The response of the US Congress was to the crime of ‘publicly offending Spanish to have laws concerning flag desecration: enact the Flag Protection Act of 1989, which symbols’. It seems odd at first glance that a Art 188 of Greece’s penal code states that was (predictably and almost immediately) modern European liberal democracy should if a person insults the national anthem, or struck down by the Supreme Court in United have laws about such things, but it turns destroys the flag or other national Greek States v Eichman, 496 U.S. 310 (1990). out that there are all sorts of rules around symbols, they can go to prison for two years Since Eichman, there have been many Europe that apply to the desecration of flags or pay a fine. The code also deals with the proposed Flag Desecration Amendments and national symbols. desecration of foreign flags at Art 155. If to the US Constitution and the text has someone ‘removes, destroys, deforms or been passed three times by the US House of European standards pollutes the official flag or emblem of the Representatives. However, amending the US The United Kingdom has no specific laws sovereignty of a foreign state’ or ‘interrupts Constitution is not simple (broadly: a two- that prohibit the denigration of the ostensible the national anthem’ they could serve up to thirds majority in both Houses of Congress is national flag, the Union Jack (or the ‘Union six months in prison or pay a fine. required, as well as ratification by three- Flag’ to vexillology pedants). Indeed, perhaps Under the German criminal code, it is quarters of the states, each state carrying one of the worst things in the mind of the illegal to disparage or damage the German equal votes). In November 2016, President- populace that one can do with the Union Jack federal flag as well as any flags of its states in Elect Donald Trump tweeted that no-one is to hang it upside down, which happens public. Offenders can be fined or sentenced should be allowed to burn the American flag, more often than one would imagine. There up to a maximum of three years in prison, although he has not as yet put forward any are however town and country planning or fined or sentenced to a maximum of five proposals for a constitutional amendment. regulations that govern which flags do and years in prison if the act was intentionally One of the great ironies in all this is that do not require the permission of the local used to ‘support the eradication of the the United States Flag Code (Chapter 1 of planning authority to be flown. Whether Federal Republic of Germany’ or to ‘violate Title 4 of the United States Code (4 U.S.C. or not the burning of the Royal Standard constitutional rights’. § 1)) states that ‘the flag, when it is in of the British monarch or of the Union Jack The Italians too take a firm line on this such condition that it is no longer a fitting would have been an offence under the now- issue: prohibited by law (Art 292 of the emblem for display (for example, the flag abolished common law offence of seditious Italian Penal Code) and punished with being faded or torn), should be destroyed in libel is perhaps debatable. The burning of red fines of between €1,000 and €10,000 for a dignified way, preferably by burning.’ NLJ poppies did however lead in 2011 to charges desecration, and with imprisonment of and convictions under s 5 of the Public Order up to two years for physical damage or Athelstane Aamodt, barrister, 4 King’s Bench Act 1986, although the Act is concerned destruction. The Swiss also have laws on Walk (www.4kbw.co.uk).
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