Email #297: “a piece of cloth”?

On Tuesday evening, ten Confederate flags were placed on public bulletin boards on the American University campus in Washington, DC—just seven miles from your own office. American University responded:

“We are well aware this act occurred the same evening Dr. Ibram Kendi presented “A Vision for Equality,” an introduction to the Antiracist Research and Policy Center. AU is committed to the vision of the Center and Dr. Kendi’s work and we will not be deterred by this cowardly attempt at intimidation.”

You have previously argued that some symbols, specifically flags, have such force that their use transcends the Constitution. You said in 2005: “The American flag is much more than a piece of cloth,” before voting for a Flag Protection Amendment that would have made the physical desecration of the American flag illegal. You argued that “not all actions constitute free speech” and that you were “hardly alone in asserting that flag desecration isn’t free speech to be protected under the First Amendment.” This is because the flag is “our nation’s most recognized symbol of freedom.”

Over a decade later, we are now increasingly faced with another flag, our nation’s most recognized symbol of inequality. While the battle flag of the Confederacy’s Army of Northern Virginia—commonly known as the Confederate flag—has been the icon of the KKK and other white supremacist groups for decades, the Charlottesville “Unite the Right” rally in August heightened its presence as it was displayed side-by-side with Nazi swastikas.

If the individuals who posted Confederate flags across the American University campus targeted your Rayburn office complex next, would interpret the image as a symbol of regional pride or as a symbol of racism? Like the American flag, the Confederate flag is much more than a piece of cloth, and, like the physical desecration of the American flag, displays of the Confederate flag need not be protected under the First Amendment. As you said in 2005:

“Free speech isn’t the right to do anything you want to do anytime you want to do it. Rather, it’s a precious liberty founded in law–a freedom preserved by respect for the rights of others. It’s well-established that certain types of speech may be prevented under some circumstances, including lewd, obscene, profane, libelous, insulting or fighting words. When it comes to actions, the proscriptions may be even broader.”

After Word War II, Germany outlawed the display of Nazi symbols. The U.S. could amend the Constitution to outlaw the Confederate flag, just as you sought to amend it to protect the American flag. If these are just pieces of cloth, then neither amendment is necessary. But you recognize the importance of symbols. Personally, I oppose both the destruction of American flags and the display of Nazi and Confederate flags. But I would also oppose any legislation outlawing those actions because in my opinion that would violate free speech. As Americans, we have the right to do stupid and offensive things.

You feel differently. You argue that the core principle is “respect for the rights of others,” rights that the Neo-Nazis and Klansmen in Charlottesville were rallying to take away from non-whites. Given that the Confederate flag symbolized the enslavement of four million people at the time of Civil War and continues to symbolize the racist absurdity that non-whites are inferior to whites, do you feel these obscenities should continue to be legally tolerated?

If not, then how should your constituents regard your 2005 position? Do you now feel that, though offensive, the destruction of American flags is and should remain protected speech? When does “respect for the rights of others” become legally more important than a flag-user’s right to commit disrespectful actions? When exactly is a pieces of cloth more than just a piece of cloth?

Author: Chris Gavaler

Chris Gavaler is an associate professor at W&L University, comics editor of Shenandoah, and series editor of Bloomsbury Critical Guides in Comics Studies. He has published two novels: School for Tricksters (SMU 2011) and Pretend I’m Not Here (HarperCollins 2002); and six books of scholarship: On the Origin of Superheroes (Iowa 2015), Superhero Comics (Bloomsbury 2017), Superhero Thought Experiments (with Nathaniel Goldberg, Iowa 2019), Revising Fiction, Fact, and Faith (with Nathaniel Goldberg, Routledge 2020), Creating Comics (with Leigh Ann Beavers, Bloomsbury 2021), and The Comics Form (Bloomsbury forthcoming). His visual work appears in Ilanot Review, North American Review, Aquifer, and other journals.

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