Philip Hensher: Shocking and disrespectful – but illegal?

Are the rights of mourning, commemoration, of general silence so compelling that no one may speak against them, and not raise a voice in protest

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You can never predict where laws on desecration will fall most heavily.

Take flag-burning, for instance. America takes its flag much more seriously than we do – "'Shoot, if you must, this old gray head/But spare your country's flag,' she said," as the civil war ballad runs. It is not, however, illegal.

In a motley array of countries, liberal or not so much so, flag-burning is regarded as a crime. Turkey and Israel, but also Switzerland, France, Germany, Romania and Portugal react to the desecration of the flag, sometimes even in private situations, with fines or a prison sentence.

Nor are these antique laws which have survived, unused, into the modern era. The French parliament passed a law on 21 July last year, clarifying that the desecration of a flag was a crime, "même commis dans un lieu privé", as it was to publish images of such desecration.

Though you can light your bonfire with a blazing Union flag in this country for all the authorities will care, there are, apparently, some new sacred objects which the law will not allow you to set on fire. An interesting case is under way with regard, not to burning the Union flag, but of that more recent national symbol, the Armistice poppy. Mr Emdadur Choudhury and Mr Mohammad Haque attended an Armistice day commemoration outside the Royal Albert Hall last 11 November. Unlike the majority of people there, they apparently had no intention of observing the two minutes' silence which, in recent years, has come to be generally kept at 11am. They were there as part of a groupuscule calling itself Muslims Against Crusades. At 11, they produced three large plastic poppies, doused them with petrol, and set them alight, continuing to chant anti-military slogans during the two minutes' silence.

Almost all of us will agree what shocking and grossly disrespectful behaviour that was. Few people regard the Armistice silence as a militaristic gesture in support of war – actually, most of us think of it as a gesture of grief, and acknowledgement of the futility and waste of war. The two minutes' silence used, until very recently, to be limited to 11am on the nearest Sunday, where you could remain unaware of its existence. Only in the past few years has it been observed on 11 November itself, where in general it benevolently disrupts the working day, to harrowing effect.

Mr Chowdhury and Mr Haque were arrested, and are accused of burning three oversized plastic poppies in a way that was likely to cause "harassment, harm or distress" to those who witnessed it. Certainly it did cause distress. A Mr Kibble attending the ceremony gave evidence that "it was as if someone had ran a blade through me. To see a wreath or poppy burning, it's just despicable. I had tears of anger and rage at the disrespect in my eyes". I don't doubt it. There doesn't seem to be any evidence that anyone was physically harmed, or at all likely to be. Certainly the behaviour of the group harassed the larger body, in the sense that their noisiness made their dignified silence less noticeable.

Sticking up for people who display opinions we find obnoxious is never a very pleasant task, especially if they choose to display them in the presence of tragic bereavement. Their rights are not very likely to be at the forefront of anyone's mind. A group called Islam4UK, led by a Mr Anjem Choudary, announced then abandoned plans to march in protest through Wootton Bassett, the town through which dead servicemen returned from Afghanistan take their final journey. An eccentric American Christian, Fred Phelps, took to attending funerals of American soldiers and of lynched homosexuals with celebratory placards reading "God Hates Fags", until laws were passed to forbid such protests altogether.

Funerals are private occasions. The two minutes' silence is, surely, a public one. Mr Chowdhury and Mr Haque may be correct if they say they were exercising their right to free speech. It does no good to say that their views are those of a tiny minority. We can express our abhorrence of them, without going to the point of saying that we want them silenced through the law. It does no good, either, to point out that some protesters in the past have had very little regard for free speech in general. If such people had their way there would probably be compulsory two minutes' hate every 11 November, and, no doubt, some strong punishment lying in wait for anyone trying to remain silent instead.

There are two principles of the limits of freedom of expression that every schoolchild ought to know. The first is that there is no absolute freedom of expression – you are not, for instance, permitted to shout "Fire!" in a crowded theatre. Was that line crossed here? The second, put succinctly, is that the freedom of one person's fist ends where the rights of another's nose begins. To some degree, that is what we have to think about here. Are the rights of mourning, of commemoration, of general silence so compelling that no one may speak against them, and certainly not raise a voice in protest?

Clearly, these people should not have been allowed to protest in the midst of the commemoration. I don't know that there's a right to use a loudhailer to conduct your free speech, either. But it is not a very happy precedent to say, with the force of law, that they shouldn't have been permitted to chant, at a fairly remote location, whatever they chose to say, and to have burnt a poppy, a flag, or an effigy of the Queen if they so wished.

Let's not start inventing laws to prosecute people whom we merely think, probably quite rightly, to be awful scum.

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