Is the burning of the Pride flag a hate crime?
By Mark Walters, Professor of Criminal Law and Criminology, University of Sussex.
Pride month is a celebration of all things LGBTQ+. Yet recently it has become a source of division, both between LGBTQ+ communities and wider society, as well as between subgroups within the community itself. Of particular contention has been the use of a new(ish) “Progress Pride flag”, created in 2018 by US artist and designer Daniel Quasar. The Pride flag incorporates additional colours that represent minority ethnic group members, as well as those identifying as trans and non-binary, while some versions of the flag also include the symbol for intersex. For many, the flag is an important representation of the struggles experienced and achievements gained by a section of society that has been historically persecuted and which continues to experience discrimination as well as increasing numbers of hate crimes. Despite this, there has been some recent public debate over whether a Pride flag is needed at all given the strides made over LGBTQ+ equality over recent decades. The new flag has also come under attack from both LGB and non-LGB people as to whether the inclusion of minority gender identities ought to be grouped with LGB people at all. Social media has been a particular platform through which some individuals have vocalised their resistance to the more inclusive version of the flag. Recently, numerous videos have been uploaded of individuals desecrating and even burning the flag. Given that it represents multiple minority ethnic, sexual and gender identities, some have asked the question: is posting pictures or videos online of individuals burning or desecrating Pride flags a hate crime?
Unlike in many other jurisdictions, the desecration of a flag in England and Wales is not in and of itself a specific criminal offence. This does not mean, however, that such acts fall completely outside the purview of the criminal law. Much will depend on the type of flag in question, who owns it, the context in which it is desecrated, the timing of the act (such as Pride month), and importantly whether additional words or threats are used whilst carrying out the act.
In the case of the Pride flag there is the additional issue of whether the destruction targets all LGBTQ+ people or whether it is aimed specifically at certain subgroups encompassed within its multiple colours. Many of the pictures and videos posted online have been in response to the increased visibility and often toxic debate around “trans rights”. Based on this fact, this analysis focuses primarily on the law in relation to the hostile targeting of gender identity through the destruction of Pride flags. The courts have made it clear that ideological views on gender identity are protected speech under Equality Law. However, this does not mean that speech or conduct that is abusive or threatening towards trans people comes with legal immunity in public spaces, including on social media platforms.
What, then, are the criminal offences that such speech-conduct can give rise to? Unlike racial or sexual orientation hatred, there is currently no specific offence of “stirring up of transgender hatred” – though the Law Commission has recommended the Public Order Act be amended to include this type of hatred. Given this gap in the law, other provisions under the Act become relevant. For instance, it is a criminal offence to use threatening, abusive or insulting words or behaviour with intent to cause harassment alarm or distress to someone (s. 4A Public Order Act 1986). Although this offence is typically used for offline incidents it has been used to prosecute those who publish online forms of abuse. It is likely that videos that depict destruction combined with certain hostile statements relating to minority gender identities will be deemed as threatening abusive or insulting. The burning of the Pride flag carries a vivid and violent message to those who it represents. Videos posted online will often be viewed within seconds of being uploaded and in turn are highly likely to cause their intended target harassment, alarm or distress. Yet for section 4A to become operational it must be directed at a specific individual. Where videos are sent out into the internet ether without a specific victim in mind, it is unlikely that an offence can be made out under the provision; even though it might target and impact an entire a group of people.
Alternatively, the prosecuting authorities could turn to the Communication Act 2003. Under this legislation it is a criminal offence to send an online communication that is grossly offensive, indecent, obscene or menacing. The sender need only have known or be aware that reasonable persons in society would find it grossly offensive, obscene or menacing for the offence to be made out (s. 127(1) Communications Act 2003). A key question for the court, then, would be whether a “reasonable person” would find a video of burning the Pride flag menacing, obscene or grossly offensive. For a comparison, in the case of DPP v Bussetti involving the dissemination of a video of the burning of a Grenfell Tower effigy, the Court of Appeal asserted such a video crossed the threshold of what amounts to “grossly offensive”. In that case the court additionally indicated that if a reasonable person from the community targeted would find it grossly offensive then it is “inescapable” that members of general society would too.
The difficulty here is that what one person finds “grossly offensive” may simply be perceived as offensive, inappropriate, or even silly by another. The decision as to whether a video of someone burning a Pride flag is grossly offensive will likely depend on the context in which it is burned and whether any other words are said in the video. The more outrageous the statement used towards the group in question the more likely it will fall under the meaning of s. 127(1). If the video is considered to be grossly offensive, obscene or menacing, either towards LGBTQ+ people as a whole or to specific groups within it (including minority ethnic group members and multiple minority sexual and gender identities), it would be at this stage of the criminal process that the incident may also become a “hate crime”. Upon conviction and at sentencing, the prosecutor can ask the court to “aggravate” the offence where the facts evidence that the defendant was at least partly motivated by “hostility” towards persons who are transgender, of a particular sexual orientation, or from a particular racial group (s. 66(4) Sentencing Act 2020). If they agree, the sentencer would be required in law to enhance the penalty of the offender and the offence would then be recorded as a “hate crime” on the Police National Computer.
Anyone who is prosecuted for such acts may rely on human rights protections as part of their defence. In fact, the courts have found that the mere act of defacing a flag as an act of protest (in this case a US flag) is likely to be protected as a form of freedom of expression, as per Article 10 of the European Convention on Human Rights. There is always a tension between an individual’s right to express themselves freely through such acts and the state’s responsibility to protect certain groups from targeted abuse. It ought to be emphasised that Article 10 is a qualified right, meaning that the right can be restricted when prescribed by law (as is the case in the Communications Act) and where it is considered (amongst other things) “necessary” in a democratic society. If an individual were prosecuted for flag burning, and argued that the prosecution infringed their Article 10 rights, it would have to be established that the prosecution was a “proportionate” response.
Equally, the European Court of Human Rights has held that the right to freedom of expression under Article 10 cannot be used in a manner which is aimed at the destruction of the rights of others – quite simply, we do not have the right to express speech which has the aim of undermining the rights and freedoms in the Convention, notably “tolerance, social peace and non-discrimination.” Where the speech-conduct in question has the aim of breaching Article 17 rights, a defendant cannot rely on Article 10.
As with all criminal law, there are arguments to be had on both sides as to whether burning of Pride flags amounts to an offence. There is no straight-forward answer to the thorny question of whether this type of speech-conduct is protected by freedom of expression or whether it crosses the line of what is either considered to be threatening, abusive and insulting (when directed at an individual), or grossly offensive, obscene or menacing (when send out as an online communication). Each case will depend on an individual’s state of mind at the time of the posting, the context in which they have acted, and the perceptions of those that view such material.
NB. This analysis focuses on hatred and hostility towards minority gender identities represented by the “Progress Pride flag”. It examines some of the most relevant criminal offences that may apply in such cases, focusing on online speech-conduct. It assumes that flags are owned by the destroyer. Depending on context and facts in individual cases there may be other applicable offences not covered in this article.