Freedom of (or from?) Confederate Flags

Back in April Eugene Volokh posted an interesting discussion (as is his wont) of the First Amendment implications of allowing/banning displays of the Confederate flag.

The occasion for his comments was a Fourth Circuit Court of Appeals decision striking down Virginia’s refusal to allow the Sons of Confederate Veterans to design a custom license plate that featured the Confederate flag. Eugene pointed out that this was not an easy case, for the government had several good arguments on its side — that when it “spoke” it should have wide latitude in saying, or not saying, whatever it wanted and that agreeing to the Sons’ logo would give it the commonwealth’s stamp of approval. On balance, however, Eugene concluded the court was right since in its operation Virginia’s custom license program was an open forum and thus not allowing the Confederate flag was viewpoint discrimination.

A similar flap occurred in Washington back in 1993. The Senate was all set to renew, as a matter of routine, the “design patent” of the United Daughters of the Confederacy, as it had done a number of times in the past. Senator Carol Mosely-Braun of Ill. (subsequently defeated, alas not over this) objected on all the predictable grounds, and the Senate, embarrassed, backed down and refused to renew. All the issues Eugene mentioned re flags on license plates were present then — govt speech, govt “endorsement,” awarding an honor, etc., as well as the same selective censorship/First Amendment issues. Although I thought (and think) the arguments on the politically correct side were not frivolous, I also thought (and think) the free speech argument was stronger, except that nobody really made it.

Anyone wishing to pursue this matter can find a typical discussion, i.e., one that mentions no free speech concerns, here. Anyone wanting to pursue the matter on a more theoretical, as well as historical, level would be well advised to read the book by my friend Sandy Levinson, a professor of law at the University of Texas. Sandy is a dear friend, but I should warn you that he endorses the trashing of symbols, statues, etc., once what they stood for becomes sufficiently unpopular. He’s a native North Carolinian, but if he had a bulldozer, the skill, and time he’d raze all those “Lest We Forget” monuments that anchor Southern squares.

Why bring all this up now? some of you must be asking. Because Geitner Simmons of emerging Regions of Mind fame has just brought to my attention an article from Greensboro, N.C, about the United Daughters of the Confederacy being compared to the Ku Klux Klan by a middle school principle as he withdrew the school’s participation in the UDC’s annual essay contest. He then was forced to issue an abject apology.

No doubt about it: the Confederate flag is a controversial, divisive symbol, and groups that honor it are not popular. I would not display it in my house if I knew it offended family or guests. But lest we leap to accept this as an acceptable standard for exclusion from public spaces, recall that at Berkeley these days the American flag (for Southerners who remain unreconstructed: the Union flag) is itself unpopular and banned (or so some said) from certain events. See discussion here. It is also worth pondering what standard would dictate exclusion of the UDC from the schools that would not also exclude the Daughters of the American Revolution. Surely not favoring rebellion against established authority, justifying slavery, etc. Oh, so you want to exclude both? Then who would you allow in?

Perhaps we should take some lessons from our own past and re-learn the ones that teach that toleration is not the same as endorsement and that our core values (including “diversity,” properly understood) favor the widest possible boundaries for expression, and participation in public life, that are consistent with public safety.

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  1. [...] a decade ago I wrote about another Confederate flag controversy, Freedom of (or from?) Confederate Flags. It involved a newly elected black U.S. Senator from Illinois. Many of the links on that old post [...]

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