The First Amendment protects hate speech even when it’s disguised as heritage
Fly Your Flag, Lady
by Dwayne Green
If neo-Nazis have a right to march through a Chicago suburb populated by Jewish Holocaust survivors, then Summerville resident Annie Chambers Caddell certainly has a right to fly her Confederate battle flag in a predominantly black neighborhood. With apologies to those of fragile sensibilities not well-versed in constitutional rights, the Supreme Court of the United States already settled this issue in what has come to be known as the Skokie Affair.
In 1976, Frank Collin, a leader of a band of Nazi sympathizers from Chicago’s South Side, planned a march through Skokie, Illinois’ Birch Park. Of Skokie’s 70,000 residents at the time, 40,000 were Jewish. A casual observer might surmise that the choice to hold the Nazi march in a largely Jewish town was not accidental. Despite the obvious ramifications of displaying Nazi memorabilia and swastikas in a community where such images provoked a deep emotional impact, Collin applied for a permit to march right through the heart of the Jewish village. The Skokie Park Commission responded by requiring Collin to post a $350,000 bond in order to march, and the president of the Skokie Village filed a legal injunction seeking to prevent the march from taking place. The circuit court granted the town’s injunction, which both the Illinois appellate court and state supreme court refused to stay. The case eventually made it all the way up to the U.S. Supreme Court, where the American Civil Liberties Union argued on behalf of Collin and other Nazi sympathizers, defending their right to march.
The Supreme Court agreed, holding that the injunction was unconstitutional, and it ruled that the Nazis’ planned march was itself a constitutionally protected form of free speech. The Court also ruled that Nazi symbols used in the march did not equate to "fighting words." The "fighting words" standard was used to distinguish protected expression from speech that may not be constitutionally protected because of the likelihood of inciting violence. The Court also stated that the First Amendment guaranteed all citizens a free "marketplace of ideas" where even morally repugnant statements were protected regardless of who they offended.
Whether or not one believes the Confederate flag should elicit the same response in black people as a flag with a swastika might for Jewish people, the analysis is the same: In certain neighborhoods, either symbol might be deemed highly offensive, but their display is constitutionally protected. The deeper question is, when someone like Frank Collin or Annie Chambers Caddell throws up a proverbial middle finger to neighbors who may be members of an oppressed minority, how does the larger community respond? In Skokie, community action was swift, however misguided, and despite the outcome of the case, the Nazi marchers eventually decided to hold their march somewhere else. The Nazis did not march elsewhere because they were legally ordered to do so. Instead, the moral force of the opposition compelled them to choose another course.
In South Carolina, it is hard to fathom a similar response to Caddell when the flag that her neighbors dispute also flies in front of the Statehouse. The subsequent protest march, which did nothing whatsoever to change Caddell’s mind (or move her flag), uncomfortably parallels the larger community’s ineffectiveness in making a case against the flag’s placement in Columbia.
If those of Caddell’s viewpoint, many of whom represent us in the Statehouse, are ever going to consider removing the battle flag, it is not going to be because of legal challenges or protest marches. It is going to be because the larger community makes the moral case that it is more important for us to be good neighbors to one another than it is to make certain political statements.
Until that happens, Annie Chambers Caddell should continue to fly her flag. Frank Collin would be proud.
© Copyright 2010, Charleston City Paper
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