The Confederate flag and free speech

The tragic shootings in a church in Charleston, S.C., by an apparent Confederate disciple has intensified debate over the meaning of the Confederate battle flag. Many Americans believe this flag is a symbol of hate and a reminder of the evils of slavery. Others say it is merely a symbol of our heritage and a way of life gone by. Either way the Confederate flag is a symbol that conveys a message — therefore, it is speech. In fact, the stronger the reaction to the Confederate flag, the stronger the argument that the flag conveys a message that ordinarily is protected under the First Amendment. 

Many Nashville commuters who live to the South travel on Interstate 65 and pass a monument dedicated to Nathan Bedford Forrest, a Confederate general. The odd-looking statute is surrounded by Confederate battle flags and sits on a small parcel of private property adjacent to the highway. Some Tennesseans have urged that steps be taken to either remove, conceal or regulate in some way the Forrest monument. If the monument sat on public grounds it would be a relatively straight-forward matter to have it removed, assuming that was the will of government leaders. Unfortunately for monument opponents, the monument sits on private property, and its owner has refused to remove it. 

{mosads}Some readers may be wondering why local or state authorities don’t just regulate or restrict the monument in some manner. While the right to speak under the First Amendment is not absolute, government officials who seek to restrict it rightfully face a heavy burden. 

The government could claim that the monument, in particular the Confederate flags around it, is nothing more than racist hate speech, and that such speech falls outside the protection of the First Amendment. Government restrictions on hate speech, however, often fail to survive First Amendment scrutiny because of the difficulties in applying a definition of racist speech that is not unconstitutionally vague and overbroad. While it may appear obvious to some that racist hate speech undermines the constitutional principle of equality, as a general matter, such expressions are protected speech. Under the First Amendment the government simply may not outlaw symbols of hate or bigotry, such as the swastika or the Confederate battle flag. 

Advocates of government action could argue that the message of the Confederate flag equates to fighting words that arouse passion and others to breach the peace. A regulation intended to regulate such speech would not violate the First Amendment. The U.S. Supreme Court disagrees, finding that government restrictions based on the fighting words doctrine are usually vague and overbroad. Furthermore, the Forrest monument has sat relatively quiet along I-65 for many years now, and anyone offended by the image can merely avert their eyes as they pass by.

Finally, proponents of government regulation could assert that, like cross burnings, displaying the Confederate flag is intended to intimidate, and thus can be prohibited. However, even cross burning enjoys protection under the First Amendment and cannot be completely outlawed. The government may only prohibit similar public displays that constitute speech when the speech is conveyed in a manner that constitutes a true threat — a burden not likely to be met in the case of the Forrest monument. 

The importance and value of the First Amendment is that it protects speech from government censorship, no matter how racist, hateful or inflammatory. Efforts to limit such speech are not only unconstitutional but unwise, as experience demonstrates such government regulation is eventually most likely to be used against minorities.

The Confederate battle flag is a reminder of a dark period in our past, and there are painful lessons to learn from those mistakes so that we avoid repeating them. Any symbol that causes so much pain and anger should be relegated to a footnote in history. It deserves no place of prominence in our future. 

Today we are a stronger country because of our diversity, yet we are still a people divided by race. Who can say whether the prejudices that feed the fear, distrust and hatred of others we perceive to be different can be overcome through understanding and tolerance. Hopefully so, but achieving it will surely not be possible without the robust dialogue in the “marketplace of ideas” envisioned in the protections of the First Amendment.

Gonzales is the former U.S. attorney general and White House counsel in the George W. Bush administration. Presently he is the dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.