The police filed a motion against August G. for desecration of the flag. August G. was initially accused of a minor offence (wykroczenie) – causing a fire hazard. During the first hearing the court doubted whether this was legally justified and suggested that it could be qualified as an offence of flag desecration penalized by the Penal Code and punished by up to 5 years imprisonment. The case was sent back to the Prosecutor Office. However it remains uncertain as to whether there will be any further action against August G. with respects to that event, however this case exposes the broader problem of restrictions to freedom of expression caused by the application of criminal measures.
This case concerning guarantees and limits of the freedom of speech. It also presents the question of whether such political expression should be protected in abstacto. Finally it raise the question, whether Poland should protect the American flag against desecration in the political debate, whilst it receives no such protection in the U.S.
The first issue is whether Polish law should penalize foreign flag desecration and under what conditions. Article 137 of the Polish Penal Code (Kodeks Karny) penalizes national symbol desecration e.g. flag burning. Furthermore, subsection 2 penalizes the same acts towards foreign national symbols officially exposed by foreign embassies and consulates. Subsection 2 provides this protection only if the particular state equivalently protects Polish national symbols. It seems that this "equivalent protection" principle cannot be seen as a dynamic factual situation (basically: as long as they protect our symbols we protect theirs) but rather it has its basis in a special international agreement. The facts are as follows: Poland and the U.S. have not signed such an agreement. Moreover even if we would accept the dynamic conception it must be asked whether the U.S. is capable of guaranteeing such protection to any national symbols? The answer seems to be: no. The First Amendment protects any expressive conduct in the course of political debate, in particular a flag desecration is constitutionally protected as a form of free speech.
In U.S., where the society is commonly known from its high respect to national symbols, flag desecration in the course of political or social debate is allowed under the First Amendment. This protection was affirmed in several cases beginning with Texas v. Johnson No. 88-155. This authority is still binding regardless of numerous initiatives (states and federal) to adopt a statute penalizing national symbol desecration. U.S. v Eichman, 496 U.S. 310 (1990) confirmed the earlier view of the Supreme Court. The court in the case of Johnson considered the question of whether the First Amendment covered non-speech acts and, if so, whether Johnson’s burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction. The court in this cases affirmed that wording "speech" means any conduct expressing an idea. Flag desecration could be seen as to a message of certain significance.
The aim of the provisions protecting national symbols is not only protect them per se but also to protect the feelings associated with these symbols. On the other hand flag desecration and other such acts are medially "touching" and make a point in the public debate. Burning of the flag constitutes an expressive conduct that is symbolic and compelling to the broad audience. I agree with the Judge Stevens (dissenting in the Texas v Jonhson) that a flag "is more than a proud symbol of the courage, the determination […] It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations". However, it is also true that the same flag guarantees the protection of freedom of speech.
The case of August G. shows the dangerous instrumentalism when it comes to the usage of penal instruments to restrict freedom of speech. The existence of such provisions and the malice usage of them creates the so called "chilling effect". People should not be liable criminally (apart from commonly agreed hate speech) for expressing their ideas. In such cases the civil instruments should be used and these instruments should constitute a sufficient level of protection.
