As a legal matter, the case of the North Carolina couple arrested for “flag desecration” seems awfully clear-cut. The Supreme Court has ruled repeatedly and unambiguously that political speech is constitutionally protected, even if a flag is folded, spindled, or mutilated in the course of making a point. There’s actually something weird and surreal about the coverage of the case, with lots of local politicos talking as though this were somehow a debatable topic, rather than a clearly settled point of law, The chatter about the need for “balancing” free speech against the reverence due national symbols is just pointless: They lack any discretion to do so.
What is interesting, though, is that it seems to be widely accepted that “desecration” is an accurate and neutral way to describe what’s at issue here, when it strikes me as implicitly adopting the perspective of those who favor restricting speech. A standard definition for desecrate is to profane, to abuse, to violate the sacredness of. It’s an intrinsically normative term: To describe something as “desecration” is already to characterize it negatively, as something that ought not to be done. There is, perhaps, a looser sense in which even some people who (say) burn flags would be prepared to describe their protest as a kind of “desecration,” in that they are denying the sacredness of the symbol or of what it represents. But it’s not even clear that this is applicable here.
The couple charged in North Carolina had hung an American flag upside-down (a traditional sign of distress) and pinned signs to it, including a photograph of George W. Bush with the words “Out Now” and an explanation of the meaning of the inverted flag. They’ve claimed they didn’t intend this as a display of disrespect for the flag, and I find it perfectly plausible that they conceived their protest very differently from that of, say, the anarchist kid with a gas can and a zippo, whose intention is to attack the symbol and what it represents. They would probably characterize themselves as, say, “making use of a flag in a political statement,” not as “desecrating” it. So why use a term that privileges the interpretation of people who took offense over that of the people making the statement? There are, after all, conditions under which you’re supposed to invert a flag (as a distress signal) or burn it (to dispose of it). The objective actions aren’t what constitute “desecration”—the meaning of the action is. The use of the term as a description, therefore, entails a judgment about the meaning of the action. Why grant the critics even that much?