Saturday, July 11, 2015

Free Speech Must Survive The Confederate Flag

The Oxford Dictionary defines hate as "feel intense or passionate dislike for (someone)," which could apply to a whole range of offenses, especially domestic violence; but never mind. More importantly, the website of the US Department of Justice describes a "hate crime" as "the violence of intolerance and bigotry, intended to hurt and intimidate someone because of their race, ethnicity, national origin, religious, sexual orientation, or disability. "

Fortunately, it adds "The purveyors of hate use explosives, arson, weapons, vandalism, physical violence and verbal threats of violence to instill fear in their victims, leaving them vulnerable to more attacks and feeling alienated, helpless, suspicious and fearful."

Or, if you are Nick Bromell of the University of Massachusetts, Amherst, the purveyors of hate may hold fast to a political position you find noxious. Bromell in Salon writes (with emphasis on "anywhere")

displaying the Confederate flag anywhere is, at bottom, an act of hate. It should be recognized as such, and punished as a hate crime.

Given the millions who suffered under the whip of slave masters, and all the families separated as slave traders sold sons and daughters away from their parents, and wives away from their husbands, All Americans should recoil from the Confederate flag with the same horror we feel for the Nazi swastika.

Given merely what the Nazis did to European Jews- killing approximately two-thirds of them before the war ended- any comparison to their reign of genocidal terror is odious. Additionally, as noted on the US Holocaust Memorial Museum website,

While it classified Jews as the priority “enemy,” the Nazi ideological concept of race targeted other groups for persecution, imprisonment, and annihilation, including Roma (Gypsies), people with disabilities, Poles, Soviet prisoners of war, and Afro-Germans. The Nazis also identified political dissidents, Jehovah’s Witnesses,homosexuals, and so-called asocials as enemies and security risks either because they consciously opposed the Nazi regime or some aspect of their behavior did not fit Nazi perceptions of social norms. They sought to eliminate domestic non-conformists and so-called racial threats through a perpetual self-purge of German society.

The battle flag of the Confederacy should not be honored in any way by any government in the USA (nothing special about the video below- except the accent). But that's a far cry from punishing private display of it as a hate crime.

It is logically, and it is constitutionally.  Prohibiting display even of the swastika, the symbol of Nazism, has been found violative of the U.S. Constitution.  The best known and most relevant case began when

In 1977 Frank Collin, the leader of National Socialist Party of America, announced the party's intention to march through Skokie, Illinois. In the predominantly Jewish community, one in six residents was a Holocaust survivor. Originally, the NSPA had planned a political rally in Marquette Park in Chicago; however the Chicago authorities blocked these plans by requiring the NSPA to post a public safety insurance bond and by banning political demonstrations in Marquette Park.

On behalf of the NSPA, the ACLU challenged the injunction issued by the Circuit Court ofCook County, Illinois that prohibited marchers at the proposed Skokie rally from wearing Nazi uniforms or displaying swastikas. The ACLU was represented by civil rights attorneyBurton Joseph. The challengers argued that the injunction violated the First Amendment rights of the marchers to express themselves.

Both the Illinois Appellate Court and the Illinois Supreme Court refused to stay the injunction. The case was sent to the Supreme Court of the United States.

On June 14, 1977, the Supreme Court ordered Illinois to hold a hearing on their ruling against the National Socialist Party of America, emphasizing that "if a State seeks to impose a restraint on First Amendment rights, it must provide strict procedural safeguards, including immediate appellate review... Absent such review, the State must instead allow a stay. The order of the Illinois Supreme Court constituted a denial of that right." On remand, the Illinois Appellate Court eliminated the injunction against everything but the swastika. The Illinois Supreme Court heard the case again, focusing on the First Amendment implications of display of the swastika. Skokie attorneys argued that for Holocaust survivors, seeing the swastika was like being physically attacked.

The Illinois Supreme Court ruled that the use of the swastika is a symbolic form of free speech entitled to First Amendment protections and determined that the swastika itself did not constitute "fighting words." Its ruling allowed the National Socialist Party of America to march.

The repugnant demonstration was ruled acceptable in Skokie, Illinois. Skokie was then home to an estimated 6,000 to 7,000 Holocaust survivors, approximately one in six residents, and was described (by a guy named Reich; ironies abound) as "a kind of ground zero for Holocaust survivors in America."

Fourteen years later, in a case not primarily involving religious bias but racial bias (as with the Confederate flag), the US Supreme Court was asked to rule on the constitutionality of a local bias-motivated criminal ordinance in St. Paul, Minnesota which was used to charge "several teenagers (who) allegedly burned a crudely fashioned cross on a black family's lawn." The Justices ruled unanimously that the ordinance "prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses."

The cross, a symbol of  racial prejudice and hate, was burned on the lawn of the family in an obvious (and frightening) effort to intimidate its black residents- and could not be prohibited on that basis.

The Court found that an ordinance criminalizing the action violates the First Amendment- and Nick Bromell wants to criminalize display of the  flags because they (emphasis his) "send a clear, painful, and frightening message:You don’t belong here. By being here, you are in danger. This nation is not for you. "

The flags do, indeed, shout "you don't belong here" because "this nation is not for you." However, a march by American Nazis, a mere 32 years after the end of WWII, in a neighborhood characterized by Holocaust survivors says more than "you don't belong here." It shouts "Adolf Hitler didn't finish the job."  And a cross burned on the lawn of a  black family is intended to glorify lynching and instill fear of it.

The US Supreme Court, notwithstanding however wise or unwise these decisions may have been, decided the First Amendment is nothing to be trifled with.   That applies to the speech clause, as it should apply to the Establishment clause.  We cannot allow outrage over the Confederate flag to blind us to our nation's values.

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