Why must we overreact every time rebel flag appears?

Friday, May 28, 1999

Unless you count the fact that I enjoy listening to Ross Perot, I’ve never really been in the minority of anything.

I’m white, male and middle-class. I’m married and have two children. I’m Christian, community-minded and completely unnerved by Marilyn Manson.

So I suppose I can’t even fathom what it’s like to be African-American, what it’s like to face racism, bigotry and prejudice every day. Perhaps that’s part of the reason that — no matter how hard I try — I don’t understand the overreaction that occurs every time an attention-seeking half-wit wraps himself in the Confederate flag.

The latest such flap arose in Tennessee, where a Stewart County High School student is suing school officials who suspended him after he displayed four Confederate flags in a collage. One of the flags was superimposed over a picture of Mike Tyson’s face, but the collage did not contain any racist or threatening words. Although the student’s English teacher graded the collage and displayed it with others in the hallway, the school’s principal suspended the student for using “inappropriate words and symbols” in the assignment.

The rebel flag has been a hot button for years, as state legislatures in the South have debated the use of the symbol on state flags and license plates. School officials also have struggled with displays of the flag, especially now that every incidence of school violence results in administrators and teachers being blamed for “missing” signs that the violence was about to occur. Better to suspend the student who wears a Confederate-flag T-shirt or includes the flag in a homework assignment, the thinking apparently goes, than to run the risk of violence.

The First Amendment, however, doesn’t allow school officials to overreact to student speech, no matter how offensive it might be. Under the U.S. Supreme Court’s 1969 holding in Tinker v. Des Moines Indep. Community School Dist., school administrators can restrict student speech only if the speech substantially interferes with school functions. In this latest case, the collage apparently did not provoke any response from other students or disrupt school activities. In this case, where less than 2% of the school district’s population is African-American, it seems that the only person disturbed by the flags was the principal.

The principal, however, claimed that the Confederate flags, especially when displayed with the photo of Tyson, constituted “racially hostile speech.” Missing from the principal’s defense, at least so far, is any evidence that other students considered the collage racist or hostile or that the display disrupted their ability to learn.

Maybe this is where my life in the majority betrays me. Maybe the Confederate flag is inherently racist, hostile and disruptive. Maybe the Confederate flag is so saturated with symbolism that its interference with learning must be presumed.

I simply cannot accept, though, the premises upon which such a presumption would be based. I can’t accept the premise that all African-Americans react the same way to the Confederate flag. I can’t accept the premise that African-Americans are likely to react violently to offensive speech. And I can’t accept the premise that African-Americans are willing to ignore the constitutional rights of a minority group, no matter how ignorant, politically incorrect or insensitive that group continually proves itself to be.

The symbolic power of the Confederate flag, after all, is the very reason that its display must not be over-regulated. While the sincerity of many rebel flag wavers is probably dubious, a legitimate argument can be made that the flag represents valor in battle, the importance of states’ rights and an inescapable element of Southern heritage. As much as we would like to erase slavery and its effects from our history, we cannot do so. Even if we could, the First Amendment still would guarantee our freedom to speak about what we just erased.

At the same time that the First Amendment protects speech that many consider racist, it provides a means to limit that speech. One of the best ways to eradicate racism, especially among young people, is to identify it and then overwhelm it with teaching and understanding. This approach is consistent with the fundamental underpinning of the First Amendment, which is that more speech, not less, is the best response to offensive ideas.

I do not doubt that many African-Americans find the Confederate flag offensive. The more offensive they consider it to be, however, the more important this First Amendment principle becomes.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.