Israel has arrested and then given two days of house arrest for a rather bizarre form of expression: defecating on flags, including Israel’s flag. I cannot say that I am eager to attend a showing of the Natali Cohen Vaxberg’s scatological creations, but the sentencing clearly violates free speech protections that many of us believe are a core human right. Warning: foul language is contained in the story below.
In the United States, the destruction of the flag is a protected form of free speech. In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court voted 5-4 that flag burning was protected speech under the First Amendment to the United States Constitution. It is considered one of the core cases defining free speech in the United States. Brennan was joined by Marshall, Blackmun, Scalia, and Kennedy (Kennedy wrote a concurrence).
Cohen Vaxberg posted a video showing her defecating on an Israeli flag while she played Israel’s national anthem. In another video entitled “Shit Instead of Blood,” Cohen Vaxberg is pictured defecating on flags from around the world, including that of the Palestinian Authority. Cohen Vaxberg is described as a left-wing activist and artist.
It is a truly disgusting form of expression. However, the anger that it produced reinforces the view that this is not only a form of artistic expression but political expression. The Israeli court not only sentenced her to home confinement but banned her from using the Internet for 30 days. The Tel Aviv police insisted that her videos causes “damage to symbols of the state.”
It is always hard to criticize such punishments (even short sentences) in the face of such obnoxious and truly disgusting forms of expression. However, free speech is not needed to protect popular speech. We pay a price for the guarantee of free speech. That price is people like Cohen Vaxberg. By maintaing a bright line rule, we protect much more valuable forms of speech and avoid the dangers of allowing the government to draw lines between valuable and valueless speech. The slippery slope problem (a troubling image given this case I admit) has proven a real and consistent threat to free speech. We gain far more than we lose in protecting the very small number of flag burners or desecrators in this country.