The Comparative Law of Flag Desecration: The United States and the Federal Republic of Germany

Cases on political speech in different constitutional systems may illuminate important presuppositions of those systems. Pursuing this theme, this Article compares decisions on flag desecration in the United States and the Federal Republic of Germany. In the United States, where protection aginst seditious libel has been rejected as a legitimate governmental interest, arguments for penalizing flag desecration must assert implausible governmental interests. In contrast, the German Constitutional Court frankly acknowledges that the state may sometimes penalize flag desecration to avoid the impairment of governmental authority.

In conclusion the author questions whether the German doctrine, which may have been justifiable in the early years of the Federal Republic, is appropriate under contemporary circumstances.