“…We must forevermore do honor to our heroic dead. We must forevermore cherish the sacred memories of those four terrible but glorious years of unequal strife. We must forevermore consecrate in our hearts our old battle flag of the Southern Cross – not now as a political symbol, but as the consecrated emblem of an heroic epoch. The people that forgets its heroic dead is already dying at the heart, and we believe we shall be truer and better citizens of the United States if we are true to our past.”

Confederate Veteran Rev. Randolph Harrison McKim

Not all Confederate soldiers fought under the blue St. Andrew’s cross (more accurately, the saltire).  And apart from its use during veterans events, the flag’s visibility was minimal during the decades following the war. [. . .]

However, the flag’s most lasting legacy — and the source of much of the controversy today — can be traced to its use as a symbol of “Massive Resistance” by the Dixiecrats beginning in 1948 and continuing through the Civil Rights movement of the 1950s and 60s. During that period, the flag became the standard for those committed to defending classrooms, bus depots, and other public spaces (now battlefields themselves) from black encroachment.

In fact, the flag’s use throughout the 20th century covered a time span significantly longer than its presence on Civil War battlefields. Its placement atop southern statehouses like South Carolina ultimately reinforced the flag’s connection to segregation and racism.

Kevin M. Levin, America’s Simple-Minded Obsession with the Confederate Flag, The Atlantic, Aug. 16, 2012

Candice HardwickCandice Hardwick wore shirts bearing various images of the Confederate flag to her elementary and middle schools in Latta, South Carolina on several occasions and was made to change her clothes or, on one occasion, disciplined.  Latta, South Carolina was formerly a part of the Jim Crow South, and in fact was holding segregated school proms until the 1980’s.  Significant racial tensions remain.  The Latta School District enforces a dress code policy that forbids clothing that would “distract others, interfere with the instructional programs, or otherwise cause disruption.”  Examples would include “clothing that displays profane language, drugs, tobacco, or alcohol advertisements. sexual innuendos or anything else deemed to be offensive.”

I’ll cut to the chase here and tell you that the Fourth Circuit, in Hardwick v. Heywood, 711 F.3d 426 (Mar. 25, 2013), held that the First Amendment did not require the school district to allow Hardwick to wear the shirts, and that the dress code was not unconstitutionally overbroad or vague.  The Court also held that Hardwick’s equal protection rights were not violated based upon evidence that the school district has also prohibited students from wearing Malcolm X and similar apparel.  Relying on Tinker v. Des Moines Independent Community School District, a Supreme Court opinion that law students recall as the “black armband case” because a group of students wore armbands in protest of the Vietnam war, the Fourth Circuit simply concluded that the Confederate Flag could be reasonably expected to cause disruption at the school.  (And there was some evidence that it in fact had caused disruptions, although the school’s evidence involved racial tension generally.)  Therefore, the Court held, the school district was justified in banning its display.  Many other circuits have so held.  See, e.g. Defoe ex. rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010); A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th Cir. 2009); Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Scott v. School Bd. of Alachua Co., 324 F.2d 1246 (11th Cir. 2003); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000); Melton v. Young, 465 F.2d 1332 (6th Cir. 1972).

I suppose that what bothers me about the Court’s reasoning in Hardwick, though, is that there was evidence that Hardwick wore shirts with the flag on several occasions at school (i.e., before she “got caught”), and that not only were there no disturbances, but there was apparently some positive reaction. Some of the examples of racial disturbances offered by the school district, on the other hand, were more than thirty years old.

Please understand, this is not an argument for display of the Confederate flag. If you’ve read this blog, you know where I fall on the political spectrum; as to the assertion that the flag represents positive or neutral “heritage,” I am skeptical at best.

But I am also skeptical whenever one form of speech is subjected to a different standard than others. I wonder if that’s going on here, between the lines.

According to the Court in Tinker:

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09, 89 S. Ct. 733, 737-38, 21 L. Ed. 2d 731 (1969).

The students in Tinker wore armbands to protest a war, the politics of which were also extraordinarily divisive. The Supreme Court was satisfied that no disruption resulted in the classrooms, although “hostile remarks” were made outside the classroom. That was enough.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.

Id. at 509, 89 S. Ct. at 738, 21 L. Ed. 2d 731.

Was there really evidence that the flag shirts worn by Hardwick would “materially and substantially interfere with the requirements of appropriate discipline” at her schools? I’m not sure; perhaps something has been lost along the way from trial transcript to reported opinion. I do know, though, that there can be a good deal of flexibility in determining when an “apprehension of disturbance” is reasonable, and that we must be cautious of exercising that flexibility in favor of the viewpoints that we prefer.

On May 16, 1918 Congress passed the Sedition Act, making it a crime to make false statements about the United States’ participation in World War I; to insult the Constitution, the government, the flag, or the military; to agitate against the production of war supplies; or to advocate, teach or defend any of these acts.  The Act, which Woodrow Wilson championed, was targeted at pacifists and especially socialists, who were despised for many reasons but not least because the Bolsheviks had recently engineered Russia’s withdrawal from the war.  Germany’s disarmament at Versailles silenced it for the next fifteen years, and without its old sometime enemy to check its growth, the U.S.S.R. became a legitimate military power. 

Socialism had already gained some foothold in Britain, and within the United States as in Europe, it found support among the working class.  The days of robber barons and industrial monopolies were not long past.  Eugene V. Debs, an Indiana Democrat, formed one of the country’s earliest labor unions.  While in prison for striking he became a socialist.  The New York Times called Debs “a law-breaker at large, an enemy of the human race” for his advocacy of labor strikes and unionization.  Wilson hated him.

Debs was arguably the most famous American to be prosecuted under the Sedition Act.  Clarence Darrow, in a move that ought to be appreciated by Paul Clement, dropped  his corporate railroad clients to defend him.  But Darrow called no witnesses, and Debs spoke to the jury on his own behalf.  He reportedly said, in part:

Your honor, I have stated in this court that I am opposed to the form of our present government; that I am opposed to the social system in which we live; that I believe in the change of both but by perfectly peaceable and orderly means….
 
 
I am thinking this morning of the men in the mills and factories; I am thinking of the women who, for a paltry wage, are compelled to work out their lives; of the little children who, in this system, are robbed of their childhood, and in their early, tender years, are seized in the remorseless grasp of Mammon, and forced into the industrial dungeons, there to feed the machines while they themselves are being starved body and soul….
 
 
Your honor, I ask no mercy, I plead for no immunity. I realize that finally the right must prevail. I never more fully comprehended than now the great struggle between the powers of greed on the one hand and upon the other the rising hosts of freedom. I can see the dawn of a better day of humanity. The people are awakening. In due course of time they will come into their own.When the mariner, sailing over tropic seas, looks for relief from his weary watch, he turns his eyes toward the Southern Cross, burning luridly above the tempest-vexed ocean. As the midnight approaches the Southern Cross begins to bend, and the whirling worlds change their places, and with starry finger-points the Almighty marks the passage of Time upon the dial of the universe; and though no bell may beat the glad tidings, the look-out knows that the midnight is passing – that relief and rest are close at hand.

Let the people take heart and hope everywhere, for the cross is bending, midnight is passing, and joy cometh with the morning.

 Debs was sentenced to ten years in prison.  He appealed to the Supreme Court, and Chief Justice Holmes wrote a brief opinion incorporating the Court’s previous holding in Schenck v. United States, in which the Court famously delineated its “clear and present danger” test for First Amendment protection of speech.  (Schenck  also concerned socialist speech, prosecuted on that occasion under the Espionage Act of 1917.)   Hatred of socialism in America went on to become a practical patriotic necessity.  In fact, a “Red Scare” during the nineteen twenties led to the transformation of the Ku Klux Klan from a loose confederation of militias enforcing Jim Crow to a national organization united against Jews, Catholics, blacks, homosexuals and communists.  

 Schenck, the apex of Free Speech limitation, was finally eviscerated in Brandenburg v. Ohio, in which the Court reversed the conviction of a man charged with spreading KKK propaganda.  Today a Google search for “socialism and KKK” makes for interesting, and frightening, reading. 

He says, as he hooks his thumbs around his suspenders, leans back, and moves his cigar from one side of his mouth to the other.  At least, that’s how I see the scene playing out, in a back room somewhere, just before the Kentucky Bar Association voted to constrain one lawyer’s free speech rights. 

According to the ABA Journal, United States District Court Judge Danny Reeves has ruled that a bar association may restrict otherwise constitutionally protected speech by an attorney if necessary to “uphold public confidence in the judiciary.”  This follows the decision of the Kentucky Bar to issue a warning to attorney John M. Berry, who wrote letters to Kentucky’s Legislative Ethics Commission alleging violations of fundraising rules. 

This has to be wrong.  I am no First Amendment expert, but this just has to be wrong.  Taken to its logical next step, lawyers can be banned from supporting political candidates, writing editorials for the local newspaper …. writing blogs.  Of course, whether this case gets appellate review depends on whether Berry can afford to continue financing it, or whether the ACLU gets on board (if they’re not already). 

I sincerely hope this gets reversed.  I’m not interested in becoming a mealy-mouthed milquetoast for the sake of my brethren at the bar.  And so long as Orly Taitz continues to represent to the public that she is an attorney, I shouldn’t have to.