The Volokh Conspiracy - Bans on Desecrating Confederate Flags:

The Miami Herald reports:

Bob Hurst walked into a Tallahassee art museum this week and saw the symbol of his Southern heritage hanging by a noose.

The art work, which has led to a standoff between descendants of Confederate soldiers and the museum, is a life-size gallows with the Confederate flag dangling from a frayed rope. Created by a black artist from Detroit and titled The Proper Way to Hang a Confederate Flag, the piece has brought an old debate to Florida anew.

Hurst and his compatriots at the Sons of Confederate Veterans want the exhibit taken down, and they've invoked a 1961 Florida law to support them.

"I didn't find it clever. I didn't find it amusing. I found it offensive. I found it tasteless," said Hurst, whose great-great-grandfather led a company for the Confederacy and committed suicide after the South's surrender.

The leaders of the Mary Brogan Museum of Art and Science decided this week they'll put up with the backlash for the sake of freedom of speech and political dialogue....

A 1961 Florida law actually says it is illegal to defile or "cast contempt upon" the Confederate flag.... Georgia, Louisiana, Mississippi and South Carolina — have laws that specifically safeguard the Confederate flag....

Message for Mr. Hurst and his companions: The First Amendment guarantees not just the "freedom of clever or amusing speech," but even the freedom to express views that you or even the majority of your fellow citizens — or the majority of the representatives of those fellow citizens who were allowed to vote in 1961 — find "offensive" and "tasteless."

A question for those who hold that the Constitution doesn't protect flagburning on the grounds that flagburning isn't literally "speech": Would you likewise say that the Constitution doesn't protect displaying the Confederate flag in a noose, on the grounds that that isn't speech? What if a state (or a public university) decided to ban the display of the Confederate flag standing alone, with no nooses at all — would that be constitutionally permissible, too, on the grounds that flying the Confederate flag isn't "speech"? What if it decided to enjoin the display of a painting because it saw it as representing a racist viewpoint — would that too be constitutional, on the grounds that paintings aren't "speech"?

Or would you join the Supreme Court's position, which is that when symbolic expression is banned precisely because of the viewpoint it expresses, it is protected whether it's in words, flags, pictures, symbols (religious or not, e.g., donkey or elephant pins to symbolize the Democratic or Republican party, peace symbols, swastikas, or what have you)? Note that the Court has essentially taken this view ever since 1931; one of the first few cases to strike down a restriction on expressive freedom grounds involved a ban on display of anarchist flags.

(Note that of course expressive conduct may be restricted when this is done for reasons unrelated to its expressive content, for instance if a genuinely evenhanded and evenhandedly applied ban on open fires in high-fire-risk areas were applied to the burning of a flag; but of course such restrictions are generally permissible as to verbal speech, too.)

The Florida statute, Fla. Stat. Ann. § 256.051, provides, "It shall ... be unlawful ... to mutilate, deface, defile, or contemptuously abuse the flag or emblem of Florida or the flag or emblem of the Confederate States by any act whatever," and "Nothing in this section shall be construed to prevent the use of any flag, standard, color, shield, ensign, or other insignia of Florida or of the Confederate States for decorative or patriotic purposes."

	[Eugene Volokh, March 19, 2007 at 11:08am] Trackbacks Bans on Desecrating Confederate Flags: The Miami Herald reports: Bob Hurst walked into a Tallahassee art museum this week and saw the symbol of his Southern heritage hanging by a noose. The art work, which has led to a standoff between descendants of Confederate soldiers and the museum, is a life-size gallows with the Confederate flag dangling from a frayed rope. Created by a black artist from Detroit and titled The Proper Way to Hang a Confederate Flag, the piece has brought an old debate to Florida anew. Hurst and his compatriots at the Sons of Confederate Veterans want the exhibit taken down, and they've invoked a 1961 Florida law to support them. "I didn't find it clever. I didn't find it amusing. I found it offensive. I found it tasteless," said Hurst, whose great-great-grandfather led a company for the Confederacy and committed suicide after the South's surrender. The leaders of the Mary Brogan Museum of Art and Science decided this week they'll put up with the backlash for the sake of freedom of speech and political dialogue.... A 1961 Florida law actually says it is illegal to defile or "cast contempt upon" the Confederate flag.... Georgia, Louisiana, Mississippi and South Carolina — have laws that specifically safeguard the Confederate flag.... Message for Mr. Hurst and his companions: The First Amendment guarantees not just the "freedom of clever or amusing speech," but even the freedom to express views that you or even the majority of your fellow citizens — or the majority of the representatives of those fellow citizens who were allowed to vote in 1961 — find "offensive" and "tasteless." A question for those who hold that the Constitution doesn't protect flagburning on the grounds that flagburning isn't literally "speech": Would you likewise say that the Constitution doesn't protect displaying the Confederate flag in a noose, on the grounds that that isn't speech? What if a state (or a public university) decided to ban the display of the Confederate flag standing alone, with no nooses at all — would that be constitutionally permissible, too, on the grounds that flying the Confederate flag isn't "speech"? What if it decided to enjoin the display of a painting because it saw it as representing a racist viewpoint — would that too be constitutional, on the grounds that paintings aren't "speech"? Or would you join the Supreme Court's position, which is that when symbolic expression is banned precisely because of the viewpoint it expresses, it is protected whether it's in words, flags, pictures, symbols (religious or not, e.g., donkey or elephant pins to symbolize the Democratic or Republican party, peace symbols, swastikas, or what have you)? Note that the Court has essentially taken this view ever since 1931; one of the first few cases to strike down a restriction on expressive freedom grounds involved a ban on display of anarchist flags. (Note that of course expressive conduct may be restricted when this is done for reasons unrelated to its expressive content, for instance if a genuinely evenhanded and evenhandedly applied ban on open fires in high-fire-risk areas were applied to the burning of a flag; but of course such restrictions are generally permissible as to verbal speech, too.) The Florida statute, Fla. Stat. Ann. § 256.051, provides, "It shall ... be unlawful ... to mutilate, deface, defile, or contemptuously abuse the flag or emblem of Florida or the flag or emblem of the Confederate States by any act whatever," and "Nothing in this section shall be construed to prevent the use of any flag, standard, color, shield, ensign, or other insignia of Florida or of the Confederate States for decorative or patriotic purposes."