Anti-"Flag Desecration Amendment"

This week, the U.S. Senate is set for a historic vote on the Anti-“Flag Desecration Amendment.” Supporters have three main arguments. First, the flag has historically been protected. Second, flag-burning does not qualify as free-speech. Third, Americans – especially veterans - need sheltering from this “hateful” speech.

Yet, is this really the case? In the entire history of the United States, there have been less than 200 reported cases of flag desecration – less than one a year. In fact, only since Congress tried to ban flag burning in 1989 did this non-issue become an issue; reports increased to eight per year. Using history as our guide, this Amendment would produce MORE flag burning, not less! In the past, laws have been targeted at commercial uses of the flag, such as wearing flag-themed clothing. However, this amendment is NOT targeted at this type of “misuse”, which occurs far more frequently, but at rare instances of political expression.

Despite two Supreme Court cases finding that flag-burning is protected, political speech, Congress believes this act does not deserve Constitutional protection. The supporters of this amendment would want to reduce free speech rights to only “acceptable” opinions. Yet, as Justice Jackson once wrote, “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” America is a great country precisely because we have a free marketplace of ideas, a marketplace that Congress is looking to shutter.

Finally, do Americans need to be protected from flag burning? James Warner, a Vietnam POW who was tortured for his refusal to denounce the U.S. during his imprisonment, responds with a resounding “NO!” Nat Hentoff, in his book, Free Speech for Me but Not for Thee, relates Warner’s story:

“During one interrogation, an enemy officer gleefully showed Warner a photograph of Americans protesting the war by burning the flag. ‘There,’ the officer crowed, ‘people in your country protest against your cause! That proves you are wrong!’”

Warner answered, “‘No. That proves I am right. In my country, we are not afraid of freedom, even if it means that people disagree with us. The officer was on his feet in an instant, his face purple with rage. He smashed his fist on the table and screamed at me to shut up. While he was ranting, I was astonished to see pain, confounded by fear, in his eyes. I have never forgotten that look, nor have I forgotten the satisfaction I felt at using his tool — the picture of a burning flag — against him.’”

Johns Hopkins Newspaper Censorship

As the Foundation for Individual Rights in Education reported in its press release, “Student Newspaper Suffers Viewpoint Discrimination at Johns Hopkins University”, members of the conservative student newspaper, The Carrollton Record (TCR), have been charged with harassment of certain members of the Diverse Sexuality And Gender Alliance (DSAGA) for the cover of TCR’s May issue. The students are pressing this charge because the photos on the cover were taken off Facebook, a popular college social site.

Fortunately for the editors of TCR, they have at least two defenses. First, this harassment charge is based on the idea that Facebook is private content and that somehow, taking photos off of it infringe upon privacy, as the head of DSAGA believes. However, Facebook makes it quite clear, in both its Terms and its Privacy Policy, that no such expectation of privacy exists, because the content, once posted, becomes part of the public domain and is free to be used by anyone subscribed, for any purpose. In fact, Johns Hopkins University uses the site as one factor in its campus tour guide application process. As one of the editors for TCR, Dan Simon, points out, “These were all students who self-identified themselves as members of DSAGA, a number of whom were at the event we covered.” These students also had to post their own pictures on Facebook.

In short, the self-posted pictures of self-identified members of a group that brought a porn-director to campus were in the public domain, which TCR used to create a cover for its article lambasting the group and the administration for the event.

Second, the cover does not fall within the definition of discriminatory behavior.

All universities are required to prohibit harassment, by state and federal laws. These students are filing charges over “sexual orientation”, which is included in Johns Hopkins’ anti-harassment code, as required by Maryland state law. This policy requires harassing behavior to be “so severe or pervasive that it interferes with an individual’s work or academic performance or creates an intimidating, hostile or offensive working or academic environment.” As the FIRE Guide to Free Speech on Campus also points out on page 83, the legal definition of harassment is construed narrowly. The speech or expression must be meet all of three of the following to be considered harassment; it must be:

a) severe

b) found within a pattern of activity,

c) only done because of the characteristic (sexual orientation); any other legitimate reason justifies the speech.

Notice how the Hopkins code changes the legal definition. It requires severity or pervasiveness, not both as the law requires. Also it could just create an “offensive environment”, a very broad and vague idea. Finally, it never allows speech that is said for a legitimate reason to be allowed.

Despite these discrepancies, the harassment charge against the editors of TCR is baseless under both definitions. First, one cover is most definitely not pervasive nor is it a pattern of activity. Second, it is not severe, as these pictures were self-posted online for tens of thousands of college students to see. Third, the DSAGA students would have to prove that their academic or work performance had been interfered with, evidence that, as of yet, does not exist. Finally, this cover was not created for the purpose of harassing these students for their sexual orientation. Rather, it was created to expose a misuse of student funds on campus. Any “harassment” is related to the misuse of student funds, not the students’ sexual orientation as any definition of harassment would require.

Additionally, if the charge is found to be true under the Hopkins code, any newspaper cover or picture that whistleblew could be considered harassment. Imagine a newspaper story that published pictures of a campus administrator in a compromising situation so that the campus began calling for his or her resignation. These calls would more than likely interfere with the administrator’s work environment and the resignation calls could be deemed hostile. This administrator would win, under this precedent, that the newspaper was harassing.

But we don’t even need a hypothetical example. TCR’s story is the example. It is trying to expose (whistleblow) what, in its opinion, is gross misuse of student funds. It identified who it believed were the students responsible (the group that asked for and received this funding). If calls for new policies arise or even “harassing” questions asked of these students, the newspaper has accomplished its goal. It is this goal that is precisely behind exposés, like the TCR piece.

If the charge is upheld, expect to see a great chilling effect on campus speech. The Hopkins Donkey, the liberal campus paper, will have to watch what it says about George W. Bush and other conservatives on campus. Other independent newspapers will likewise have to watch what they write about. Heaven help campus newspapers at JHU if a scandal ever strikes, for they won’t be able to report out of fear of harassment charges. Once again, this incident illustrates that people should have to defend their positions, rather than bring frivolous charges against a newspaper that is simply doing its job.