To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with the rights of others.
Mohammed S. Wattad,
The Meaning of Wrongdoing - A Crime of Disrespecting the Flag: Grounds for Preserving National Unity,
San Diego Int'l L.J.
Available at: https://digital.sandiego.edu/ilj/vol10/iss1/3