Free Speech and Flag Protests: On Untitled Flag 2

Untitled (Flag 2) | Artist: Josephine Meckseper | The Spencer Museum of Art at the University of Kansas | Photo by: David Tamez (2018)

Untitled (Flag 2) | Artist: Josephine Meckseper | The Spencer Museum of Art at the University of Kansas | Photo by: David Tamez (2018)

On the week of July 9th 2018, controversy befell the University of Kansas when word got out of a public art display that included a piece by German born artist Josephine Meckseper. The piece, titled “Untitled (Flag 2),” is the final piece of The Spencer Museum of Art and The KU Commons “Pledges of Allegiance” exhibition, a nation-wide public art project featuring 16 flags created renowned artists. Untitled (Flag 2) has the American flag as its backdrop, an abstract rendering of the U.S. split in two, and a sock in the left corner of black and white stripes. As with any work of art, one should ask: what do these symbols mean? Well, according to the informational panel next to the piece (now moved inside the museum), the split rendering of the U.S. is intended to symbolize the current disconnectedness or polarization of American society. Then, the sock, represents (again abstractly) the sort of superficial nature of our unity, while we form a country, we are nonetheless divided by these black and white lines. In essence, the piece is meant to taken as a call to awareness of our fractured country

What appears to be clear, is that the display is protected under the First Amendment (United States v. Eichman, Texas v. Johnson). So, one could not soundly argue that Meckseper’s display violates some law or statute. 

However, that her display is protected by the First Amendment does not entail that we should automatically or without critical reflection respect its content or mode of display. Furthermore, what appears to be in question here is whether there should be a separation between State and individual or collective protest. In other words, should public institutions be prohibited from sponsoring (financially or by simply displaying it as The Spencer did here) speech that is critical of American politics and politicians? 

The purpose of this post is to explore and assess the merits of positions (that could be) held by members of the community that are angry and offended by Meckseper’s piece. Assuming that many of the offended grants that the art is protected speech, there are, to my knowledge, at least two arguments or positions held. The first posits that the piece ought to be condemned given that it displays hatred towards America and American values. Most commonly cited is that any sort of defilement or disrespect of the flag amounts to disrespect of American troops who have put their lives on the line defending the flag and what it represents. Second, there is the position that asserts that the flag is a sacred symbol and any individuation of it is a sacred artifact, such that, any defilement of one flag is a defilement of the ideal.   

Position #1: Any art piece displaying hatred towards American values and ideals should not be supported by public institutions.

This is the best representation one could render a possible position held by those on the right in terms of ideology. Note, Kansas Democratic congressional nominee, Paul Davis, indicated that he believes the Spencer Museum practiced poor judgment. Despite the nuances of political allegiance of those who have denounced the piece, it remains pertinent to examine the position. It certainly seems reasonable to expect public institutions to remain neutral. After all, public institutions receive funds from taxpayers, and taxpayers do not have a say in how that institution uses those funds (at least not a direct say, their vote is all they say they have). Further, remaining neutral, and not espousing any particular political position or ideology more than another allows for those of differing opinions to speak freely and with little hesitation (at least that is the hope).  

Now, how sound is this position? Again, as I mention above, it is reasonable to expect public institutions to refrain from supporting pieces that demonstrate outright hatred of American values (but, even this can be questioned). At the same time, it may be of some importance to look at the role or nature an institution has in a society. An art museum and a university would not be fulfilling their roles if they merely toed the line of whatever party is in power or of the en vogue socio-political ideology. Generally speaking, universities task themselves with pursuing knowledge and bettering the world - for the sake of human flourishing. A very important aspect of this mission is taking a critical eye to the policies and values espoused by those in power and those with most culture clout. The exhibit promoted by the University and The Spencer Museum does not appear to violate this mission, and it most certainly seems to be in line with it. What about the position question? Meckseper’s piece is not advocating or signaling any sort of hatred towards American values. The principle of charity appears to demand this sort of interpretation. Rather, the artist (through the piece) appears to be saying that America is not living up the values for which the flag represents and that the country (its private citizens, institutions, and political actors) can do better. You can disagree about this particular message, but you cannot on the false grounds that it promotes hatred of American values or of the flag.    

Position #2: Desecration of any kind of the American flag should not be permitted, especially as a public institution

Another position to take note of is that Untitled (Flag 2) involves desecrating the flag. Now to desecrate something often involves the connotation: that which has been de-secrated is sacred. Many in American do happen to take the flag to be a sacred artifact. Underpinning this position is a commitment to some idealized form of the flag that is instantiated in every particular flag such that desecration of a particular is a description of the ideal. The argument might go as follows:

P1. The flag is a sacred artifact.

P2. Any form of defilement, defacement, or debasement amounts to desecration and ought to be condemned.  

P3. What the artist did with the flag amounts to blatant disrespect of the flag.

C. Therefore, the piece along with the artist, the Spencer Museum of Art, and the University of Kansas should be condemned.

For now, we can grant that the flag is a sacred American artifact. At the very least, it can be reasonably asserted that it is important that citizens of the U.S. take it as such. No doubt, critical pressure can be placed on premise 1. It makes sense to ask: Should we hold the flag with such reverence? But, for the moment, we will grant this premise. Perhaps, the weakest or most vulnerable premise is that Meckseper’s piece is a form of desecration. Of course, it is not enough to say that according to Meckseper and the museum the art does not qualify as a form of desecration, for at some point both sides end up begging the question. Rather, it may be a much more salient point to say that Flag 2 does not qualify as a form of desecration even on the naysayer's terms. A blotch on a flag is neither respectful or disrespectful, at least until we examine the intentions of the artist. This is an elementary point regarding language and meaning. To perceive the marks on Flag 2 and immediately find them offensive would be looking for trouble where there isn’t any. If we then take Meckseper’s intentions into consideration, we’ll find that the artist is not voicing hatred or anger towards the men and women of the armed forces. On the contrary, Meckseper can be seen as saying that their lives are being utilized for unjust wars: or, at the very least, that those for whom they are fighting for who are not living up to their end of the deal. By not living up to the ideals of the flag, which happens to include an artist’s right to protest, Meckseper may be arguing that we have disrespected what the flag represents.     

When pledging to the flag, we are not pledging to a flag in particular or simpliciter, but to that for which the flag stands: life, liberty, and the pursuit of happiness (as well as the rights explicated in the Constitution). We take certain values and rights to be sacred and not the material flag. When members of our community emphasize love for the flag over the values and rights it represents, which are (arguably) being violated or going unrecognized, then we have juxtaposed the properly sacred with the mere representation. The flag is important, no doubt, but never more so than for what it represents.

Bonus Position #3: The art piece violates US Federal Flag codes and should be taken down

I would be remiss if I did not mention the possibility that the display violates US Federal Flag code by having symbols painted on the American Flag (Flag Code §176 (g)). But, let us assume for the moment that the display does violate the flag code, where do we go from there? What this appears to get us is a condemnation and removal on technicalities. But, where is the line of demarcation - between which codes should be adhered to and which should not - drawn? There are plenty of mattress stores that promote their merchandise using the American flag (in violation of (i)) and plenty of instances of the American flag being converted to bikinis or swimming trunks (in violation of (d) and possibly (j)). Now, one might bite the bullet and concede that these uses of the flag should also be prohibited. In doing this however, we risk limiting our commercial institutions more than we would like. This, in addition to, having the problematic consequence of limiting free speech.

What I hope to have demonstrated here is twofold. First, I have done my best to present the positions of those condemning the flag in the best of lights. Second, I hope to have demonstrated that each position are unsound in a number of ways. Where one falls on this debate depends a great deal on the sort of assumptions we have about what it means to be patriotic, to respect the flag, and what the flag represents. In other ways, claims about the display amounting to hatred of American values or that the artist lacks the appropriate respect for the men and women in the armed forces, have turned out to be unreasonable and lacking sufficient grounds. Nonetheless, I am quite open to being wrong on some of these matters and I encourage readers to point them out (as respectfully as possible as I have). At the very least: Lets have a dialogue!

Reflections by Dr. Luke Murray

Thank you David for your concise and fair presentation of the recent flag controversy at KU. As you know this is a divisive issue and one which has been most prominently featured during the NFL season and the controversy surrounding players not standing for the national anthem (and display of the flag). I thought your post was very good in presenting the bare bones positions and your treatment was both respectful and honest. I would merely like to add a few thoughts to the discussion.

First, I don’t think your third (bonus) point about the Federal Flag statues should be dismissed so easily as saying that because other aspects of the statues are broken to varying degrees (flags as advertisements and dresses), that the code is arbitrary. Your argument that such an action would unduly limit commercial practice is not convincing since the government frequently  limits the practices of such establishments (i.e. you cannot discriminate in your business based on a person’s skin color). I think the easiest way to judge the situation is to say that the federally funded University broke federally established laws by displaying the ‘art-piece-flag’ and therefore they had to remove it. Of course, what you are getting at is whether the law itself should be changed, or more generally, when one should intentionally break the law; and you do mention this in your first point when you discuss the purpose of a university.  Traditionally, the latter question was addressed (at least in Catholic/Christian countries) in terms of whether a law was just or unjust. If a law was unjust, then it was without force since it lacked the (higher) support of God’s divine law and should not be obeyed. I do not want to get side tracked here, suffice it to say that if the law was changed, the flag could surely have remained in place, even though many would still feel outraged.

This naturally leads to my second point. Why is the flag so special? Why would people still be upset even if the law were changed? I think you are exactly right when you mention that most hold it to be a “sacred artifact” and that any “defilement, defacement, or debasement amounts to desecration and ought to be condemned.” You then point out that the author however, does not intend the ‘art-flag’ to be disrespectful in anyway to the country or its ideals and therefore should be permitted. I believe the real area of disagreement lies in how people understand the flag itself and what it symbolizes. You (and many on the left I would guess) sharply distinguish between the flag itself and the ideals which  it symbolizes (life, liberty, pursuit of happiness, rights). However, for many people, because the flag is a “sacred artifact” it is so closely united to what it represents that any marking of it “desecrates” the flag and should be forbidden. For them, it does not matter what the author intended since the markings are still present on the flag and visibly change the pattern and character of the flag. Hence it should be forbidden because it “desecrates” something that is loved and for which thousands have freely sacrificed their lives to protect.

But this only leads us to another question, and my third and final thought. What does it mean to “desecrate” something? Are the flag’s opponents simply too stupid to see the artist’s purpose in marking up the flag? Surely they can see the divisive atmosphere of the country and appreciate an attempt to start a healing discussion, right? Although it is easy to label our political opponents as ignorant (and [David does] not do this in [his] post), it unfortunately only exacerbates the division in our country; therefore we must all try to fairly get to the root of our opponents’ views. In this case, because our culture has lost nearly all understanding of the “sacred,” it is not surprising that they do not understand why “desecrating” or literally  “de-sacred-izing” something is such a big deal. Historically, when someone ‘consecrated’ (the opposite of desecrating) someone or something, that object or person became ‘sacred’ or ‘set apart’ in a special way - usually for the service or worship of God. Any violation or even regular, common use of that item was forbidden from that point on, a ‘desecration’ of it. Its identity and purpose was completely changed and it was no longer possible to separate its reality (shape, color, size) from its meaning or purpose. Thus, referring back to the flag, the opponents of the art are not ignorant of the authors’ (good) intentions but object to the use of the flag as a medium of expression since they hold the flag to be a ‘sacred’ reality; something whose shape, size, color etc. that cannot be separated from what it represents and for which so many people have sacrificed their lives for.

I am sure this appears as superstition to many, and due to size constraints, I do not want to get into the foundations of  ‘sacramental’ worldview (I do here). However, I would just say that this older philosophy did not limit meaning or purpose in reality to coming from the human will alone, but believed that meaning and purpose could be found in objects and realities themselves, since they were created by God, the ultimate artist who created all things as a medium to express his love and concern for creation.

Response - Dt

Thank you, Luke for your response. Based on your responses, it appears I have some clarifications to make. You are right to point out that the third position should not be easily dismissed (I do not think this of any of the positions posited). Further, it was not my argument that the flag codes are arbitrary - at least not initially. Rather, it has been rendered arbitrary or nearly without meaning because it has not been enforced consistently and we seem to have decided implicitly that certain violations were tolerable and others were not. The line seems to be: if a misuse of the flag has commercial efficacy or utility then said misuse is tolerable (even if I agree its a misuse) but if it does not have any use AND it is a message I do not particularly support, then it should be prohibited. This line does not appear to be all that strong or seems to undermine our commitment to respecting the flag. No doubt, one might object and say that the particular commercial uses to which I refer come with the added message that the misusers are doing so out of the utmost respect and patriotism. Alas, herein lies the nuance with which I am concerned: the artist or protestors can and do say the same thing of their misuse. I take both parties at their word, unless I am presented with evidence of the contrary. By contrary evidence, I have in mind either a protestor or a commercial user acting as cafeteria Americans - valuing certain rights but not others or to the extreme of partaking in espionage or treason for profit.

Secondly, your labeling as leftist the position of meaning being separate from its physical symbol strikes me as odd. Naturalism, from which the position is derived (for the most part, but this might be contentious), is neither leftist nor conservative. For example, some naturalists will certainly recognize that there are natural kinds (see the work of Hillary Putnam). That is, what we mean by water does not only depend on our intentions, but the physical/ chemical properties (water= h2O) also fix the meaning of what we mean by water. But, this is the case given the contingent facts of our environment. Here, we might ask whether the flag being tied to the values it represents is similar to the case with water (is it a natural kind?). Even if we do take it as a sort of natural kind, what are the pertinent communal, social, or environmental factors that contribute to its meaning? Both sides, the protestor and the commercial user, will say that they hold the flag to be sacred. The protestor will say that their misuse was necessary to call attention to the fact that we have stained the flag by not living up to the values it represents - a sort of ripping of the shirt to demonstrate disgust. I am not under the impression that all protestors are acting with the best of intentions and that all commercial users of the flag are sincere. 

Neither side, until all doubt is removed, should accuse the other of being ignorant or stupid. Nor is it particularly useful, and I regret using the language of “the right” (although I tried to demonstrate that there is nuance here given Paul Davis's response) above, to use these labels to automatically dismiss or characterize a person's position. For this, I apologize. Finally, I am also concerned with committing to drawing a close tie between the flag and the ideals it represents for the following reasons. First, doing so can affect our behavior in such a way that causes us to undermine or disrespect the very values the flag represents. There might be occasions where such behavior is necessary, but not often. Second, in times of severe persecution it seems that physical symbols take on less importance. For example, if there were ever a time when American flags were being burned for more sinister reasons, this would not entail that the values go away or that we should cease believing and championing them. They go on. Symbols will change, but the meaning will go on. All that I advocate is not a separation of meaning but a separation of importance.