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| Mississippi State flag. |
This event raises the ever so prevalent questions surrounding the Confederate flag, and whether or not it should (or is it legal to) be banned in the United States, since to many people, it carries an underlying meaning of racism.
Since we are discussing Supreme Court cases in class, I thought it would be helpful to discuss relevant cases.
In the Supreme Court case Walker v. Texas Division, Sons of Confederate Veterans from June of this year, the Supreme Court decided in a 5-4 decision that the State of Texas is allowed to refuse to offer a Confederate flag license plate theme.
This case considered two questions:
1. Do specialty license plates constitute government speech that is immune from any requirement of viewpoint neutrality?
2. Does preventing the confederate flag from appearing on license plates constitute viewpoint discrimination?
The majority opinion argued that license plates represent government speech, not personal speech because of its strong association with government. Therefore, if Texas chooses to not offer these license plates, it is not violating First Amendment rights to free speech since it is not suppressing the free speech of the individual but rather portraying the viewpoint of the government. This conclusion was reached using the Pleasant Grove City v. Summum case as a precedent. This case, decided in 2009, was relevant because it answered the question, "Does a city's refusal to place a religious organization's monument in a public park violate that organization's First Amendment free speech rights when the park already contains a monument from a different religious group?" The Court unanimously decided that placing a monument in a public park is a reflection of government and its speech.
Going back to the Confederate flag issue, Justice Alito disagreed with the majority. He argued that "Suppose you sat by the side of a Texas highway and studied the license plates on the vehicles passing by... If a car with a plate that says "Rather Be Golfing" passed by at 8:30 am on a Monday morning, would you think: "This is the official policy of the State-- Better to golf than to work?"
Obviously, there is no clear cut answer to this question of free speech and what exactly "free speech" even constitutes. Does the First Amendment apply to the Confederate flag? Does the government have the right to limit or prohibit the exhibition of this flag? What do you think?
Sources:
Bombing: Washington Post, CBS News
Walker v. Texas Division, Sons of Confederate Veterans: Oyez, Economist
Pleasant Grove City v. Summum: Oyez
Photo
8 comments:
Though I personally believe that the Confederate flag is representative of years of institutionalized racism and that, morally, it should not be displayed any longer, I also believe that the government cannot completely prohibit exhibition of the flag without violating the First Amendment. Yes, in certain situations in which it can be argued that the Confederate flag reflects government speech, like in Walker v. Texas Division, Sons of Confederate Veterans, then banning the confederate flag can be legally justified. However, I think the government cannot extend their power to banning, for example, wearing a shirt with the flag design on it or displaying it on a front lawn, as these are private speech, not representative of the government. Doing so would encroach upon people's First Amendment right to free speech, even if it is a symbol of racism.
I think that given the current interpretation of the First Amendment, the government can and should prohibit the exhibition of the flag. The Supreme Court has stated that the First Amendment involves both the concepts of freedom to believe and freedom to act, and that the freedom to believe is absolute but the freedom to act is subject to the regulation of society (this is from the textbook, pg 159). Just as the Court upheld a federal law barring polygamy, it should also uphold laws barring the Confederate flag. However, there is some precedent when it comes to the restriction of freedom of speech. In the case R.A.V. v. City of St. Paul in 1992, the court ruled that a St. Paul law that prohibited action or speech that "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender" violated the First Amendment because the government was punishing speech based on it's content (https://www.oyez.org/cases/1991/90-7675). So while perhaps the government should have laws banning the Confederate flag, it's possible that the Supreme Court will not uphold it.
Because of what the flag represents, I believe that the government should consider taking steps to minimize its association with the Confederate flag (like how the flag was taken down at the SC Capitol earlier this year). However, I think if the government were to ban the display of Confederate-themed items, it would do more harm than good.
First, the backlash would be incredible — people are more likely to assert their rights when they feel like that assertion is threatened. To some extent, people wave the Confederate flag/graffiti swastikas because they know they will get attention.
Second, it sets an incredibly dangerous precedent to do so. What does the image of a Confederate flag do? Yes, like Jessica said, it's an ugly symbol of institutionalized racism in our country, which is still a problem today, but the image alone by itself does not cause fights or start wars. It causes discomfort. And if we were to ban the display of the Confederate flag, we would be setting a precedent that bans speech, either explicit messages or implicit messages like the Confederate flag, that makes people uncomfortable, and generally speaking, people don't have the right to not be uncomfortable.
The only way for the Confederate flag to truly disappear is if our culture permits it to. I'm happy that stores like Walmart are realizing what the flag represents, especially given the state of race relations today, and taking it down. This is how it will die, and this way, it will die permanently.
Maggie, This article and your capability to include similar Supreme Court cases into it was well done. Great Job!
Anyway, I do acknowledge what Emily believes, that the flag represents racism and hate. However, coming from a family who's dad grew up in the south his whole life, currently have half my relatives all other the deep south, and even related to a confederate fighter who surrendered at Appomattox, I can defend the side that not all people who own a confederate flag are racist. My family does not own any confederacy theme items, nor are they racist in any way, but they are proud to say they share the blood of a confederate fighter. That is because they believe, and I agree, that it is okay to have pride in most roots as an American. Respecting what some relatives have done years and years ago should be acknowledged. Again, I am not saying it was okay to defend for slavery whatsoever, but I do think people have the right to express their pride. For example, in this article, http://www.usnews.com/news/articles/2015/09/17/confederate-flag-wearing-students-suspended-en-masse-in-virginia a kid was suspended for wearing a confederate shirt. Although I do think that shirt is inappropriate, I don't think he needed to be suspended unless proven that he was wearing it for actual racist reasons and not pride like stated.
I do think the government has the right to put restrictions on the confederate flag, however I don't think it's as bad as a "hate crime", so I believe they should let people represent it like freedom of speech under the first Amendment.
Like Emily said, the government cannot really ban the display of Confederate flags because of the precedent that it will set. If the government simply bans every unpopular opinion (however offensive and unacceptable they may be), the freedom of speech really doesn't exist. The case that Carolyn presented (R.A.V. v. City of St. Paul) defends this as well.
That being said, I think that the government does have the right to limit the way that the Confederate flag is used. If someone wants to put that flag up on their lawn, that's fine. However, if a group wants to put this flag up in a public park, then the government has the right to intervene since it's like that group is speaking on the part of the government. This is supported by the Pleasant Grove City v Summum case that Maggie discussed.
Like Emily and Jessica, I believe that while the Confederate flag signifies the hardships many faced in regards to the inherent racism still embedded in the fabric of society, the nature of the First Amendment makes it fairly difficult for the government to justifiably prohibit the exhibition of the flag. In regards to the flag itself, it stands as a form of symbolic speech and is thus protected by the First Amendment. Supporting this idea (in addition to the case that Carolyn mentioned), the ruling in Stromberg v. California, in which the Supreme Court ruled it unconstitutional for the state of California to prohibit the exhibition of a red flag, presumably representative of communistic ideals, could be linked to this case with the Confederate flag.
On another note, I think Meghan raises a fair point regarding how others may perceive the Confederate flag to be a source of pride; however, I think there are quite a few nuances here. As a flag stands as a symbol or representation of an idea, I suppose we’d have to go back to the history of the flag to really get at what it represents. According to the Atlantic, the Confederate flag made its official comeback during the late 1940’s when the Dixiecrats protested against President Truman’s actions to desegregate the military and to push forward anti-lynching laws. Adopting the Confederate flag, the Dixiecrats gained momentum for their “segregationist platform,” and the Confederate flag “became the symbol of segregation.” (Here’s the article if you are interested: http://www.theatlantic.com/politics/archive/2015/06/why-is-the-flag-still-there/396431/ )
Such a history does make a compelling case as to why many people believe the Confederate flag represents institutional racism. In regards to the flag itself and the people that wholeheartedly believe in its demonstration of freedom, I wonder - how much does the flag actually perpetuate the culture that it apparently stands for? If it does significantly perpetuate that culture, then is it then (theoretically) the government’s responsibility to protect those individuals from further abuse?
Great post Maggie! I strongly believe that the confederate flag is not something that should be encouraged, however, I do agree with Emily's point that prohibiting this usage of the flag could create an excess of chaos and hysteria. People prefer to have more rights rather than restrictions. I think if the government were to ban Confederate flag items, people would be more willing to support the right to have the flag displayed than not. If the Supreme Court were to put an end to the display of the Confederate flag, this would contradict other precedents that were set in the past. I do not know if other people have witnessed these people in San Mateo, but there is a very patriotic group that lives in our neighborhood that drives trucks with numerous bullet holes shot on the backs of the vehicles and large american flags that wave on the backs of their trucks. Is this because they truly love our government and want to show the world how dedicated they are to America? Is this simply to show off? It could be both, however, I think it is mostly to show off. If the Supreme Court told these drivers that they couldn't drive with an American flag on the back of their truck, they would go ballistic. I think it is better to leave people to believe in their own beliefs and if I or the American government does not believe in those values, we as a country HAVE to be okay with that. We cannot all believe in the same thing. We have disagreements all the time. I do believe with Jessica that the Confederate flag is not something that should be displayed casually, however, we also need to understand that there are many racists that live in the United States and we have to treat them as equals due to the Bill of Rights and the Constitution. The only way we can remove the Confederate flag from this country is to not ban it, not support it (obviously), but to instead ignore the symbol and with time, the symbol will die out. I do not think the United States is concerned that we will have a second Civil War, so in my opinion, if the flag is of no threat to the people or the country, then we should simply be happy that those people are exercising their right to speech or thought - even if we don't necessarily agree. Like Emily mentioned, this flag is already being less valued as Walmart is not selling the state flag anymore. Hopefully with time, people will begin to understand why the Framers wanted freedom of speech.
I believe that the Government should not interfere in Freedom of Speech. Let the man drape himself up in Confederate Flags so he can tell the world how he feels about racism, and let him be responsible for his believe and actions. If he breaks the law, throw him in the slammer like any common criminals. That way he's not going around bombing a Walmart store because that's an easier target then bombing a police station or any other government building.
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