‘Fighting words’: The debate over the Confederate flag
In a 1937 Supreme Court case, Justice Benjamin Cardozo opined, “Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.”
Such should be the logic, some believe, in the debate that continues to rage over the display of the Confederate flag. Battered by politically correct sentiments and racist sensitivities, the Confederate flag has not seen so much action since the battles of Gettysburg and Antietam. Whether emblazoned on T-shirts, imprinted on license plates, carried in parades or unfurled from state flagpoles, this symbol of the Old South has become the newest battleground over the First Amendment’s right to free speech.
On the front lines of this raging battle are the Sons of Confederate Veterans (SCV). Composed of men whose ancestors fought on the side of the South during the Civil War, this group has been denied permission to display its logo – which contains the Confederate battle flag – on everything from specialty license plates to flag markers on graves to civic organization boards at the entrance to the town limits.
Yet disputes over the Confederate flag have passed beyond the Mason-Dixon line to become part of a larger debate over what constitutes free expression and what could be considered “fighting words.” Pointing to highly publicized incidents of hate crimes and racist violence, many authorities have opted for acts of censorship in order to avoid conflict. For example, when confronted with high school students wearing Confederate flag T-shirts to school, school officials in North Carolina, Virginia and West Virginia tried to silence such free expression through suspensions. In one Virginia case, two students who wore Confederate flag T-shirts in recognition of Confederate History Month were suspended for “disrupting the smooth opening of a school day.”
Officials at a Kansas middle school suspended one student after he sketched a Confederate flag – familiar to him from the Dukes of Hazzard television show – on a sheet of paper at the request of a friend. According to the school’s zero tolerance policy, the Confederate flag is a prohibited symbol of “racial harassment and intimidation.” The student sued and lost in court, and the Supreme Court refused to hear his case.
Even Confederate graveyards have come under attack. In Maryland, the Department of Veterans Affairs (VA) removed the Confederate flag from Point Lookout Cemetery, which is located on the site of the former Point Lookout prison camp operated by the United States during the Civil War. Point Lookout is the mass burial ground for approximately 3,300 Confederate soldiers who died while imprisoned there. A federal court of appeals rejected an appeal, saying the graveyard’s purpose was to honor the dead “as Americans,” not as Confederates.
And in an attempt to avert racist or sexist sentiments, one Topeka, Kansas, city administrator even went so far as to create a policy prohibiting any “sexually or racially insensitive” emblems or symbols on an employee’s privately owned vehicle while parked on government property. The policy was apparently targeted to ban the Confederate battle flag displayed on vehicles.
Fortunately for the sake of the First Amendment, after years in which politically correct chatter has sabotaged free speech, the courts are finally beginning to weigh in on the issue. The Fourth Circuit Court of Appeals recently gave a resounding affirmation for free expression when it ruled in favor of the Virginia SCV’s right to display the Confederate flag on organizational specialty license plates.
It began in 1999 when the Virginia legislature approved a specialty license plate for the SCV but censored the use of the Confederate Battle Flag, which has been part of the organization’s logo since it was founded more than 100 years ago. Although the legislature has permitted dozens of organizations to use their logos on specialty plates (including trade unions, the National Rifle Association, etc.), the SCV is the only group it has ever denied the right to display its logo on a Virginia license plate. In response, the SCV filed a civil rights lawsuit alleging that the state of Virginia had denied them rights protected by the U.S. Constitution.
Ruling in favor of the SCV, the Court of Appeals concluded that “the logo restriction is an instance of viewpoint discrimination – and a violation of the First Amendment’s strictures.”
For those who view the victory for the display of the Confederate flag as a defeat for racial tolerance, it is important to remember that censorship can be a terrible two-edged sword – what is popular today can become unpopular and banned tomorrow. That’s why the First Amendment, in the words of James Madison, was written. It is there to protect “the minority against the majority.”
Thus, although we may not agree with a particular form of speech, it is vital that we protect the right of all citizens to speak. As the renowned French philosopher Francois Voltaire so aptly put it, “I may disagree with what you have to say, but I shall defend, to the death, your right to say it.”
Constitutional attorney and author, Whitehead is also founder and president of The Rutherford Institute and author of Grasping for the Wind. He can be contacted at [email protected] . Information about the Institute is available at www.rutherford.org .