The Confederate Flag Has Little to do with Free Speech

Pardon my pontificating by wading into a politically charged subject, but the issue has really gotten under my skin and I cannot hold it in any longer. And, yes, I am going to take a side in this debate and you may not like it. I am talking, of course, about the hubbub about the Confederate battle flag (or whatever you prefer to call it). Here is my take on the issue: free speech has nothing to do with it.1)What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.

As is well-known, in the wake of the shooting in Charleston, SC, numerous companies and state and local governments have removed the Confederate flag and merchandise bearing images of the Confederate flag from their shelves and buildings. Wal-Mart, Amazon, Sears, and eBay (among others) have all announced that they will no longer sell any merchandise that bears the Confederate flag.2)CNN has the story NASCAR has asked its fans to not fly or display the Confederate flag at NASCAR events.3)The LA Times has the story The South Carolina legislature quite publicly determined to remove the Confederate flag from its state capitol building.4)Reuters has the story

Among other responses from defenders of the flag, the response that drives me crazy and makes me want to write a blog post about it is this: “But, what about my free speech rights? How can Wal-Mart take away my right to wear the flag? That’s unconstitutional!” AAAGH!! No, this is not about your free speech rights. I am not going to tell you5)in this blog post whether you are right or wrong to love the flag and want to fly it or wear it loud and proud, but I am going to tell you6)with peace and love that your free speech rights are not affected.

 

The Constitution and the confederate flag

The First Amendment to the Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press ….” Simply stated, the United States Supreme Court has consistently (and always) upheld the principle that governments (city, state, national) and their various departments may not codify or enforce laws that tell you what you may or may not say. Most importantly, in order for a restriction on speech to be unconstitutional, the restriction must have been imposed by the government, not by a private citizen or business7)Univision also did not violate the First Amendment by breaking up with Donald Trump.

Now let us look at the examples noted above. When Wal-Mart, Amazon, Sears, and eBay made a business decision that they will not sell merchandise bearing images of the flag, this was NOT an unconstitutional restriction on anyone’s free speech rights because their decision was not compelled by a governmental action. In other words, no governmental entity forced these private companies to make this decision. However, if the government passed a law that told these companies that they are prohibited from selling merchandise with images of the flag, that WOULD be an unconstitutional restriction of free speech. To my knowledge, no governmental entity anywhere has yet passed a law telling private companies that they cannot sell such merchandise. These companies have simply made a business decision that they will not engage in certain speech. You, of course, still have every right to own, fly, and/or wear any item you want that shows images of the Confederate flag and no governmental entity has yet told you that you are legally prohibited from doing so. However, you do not have a constitutional right to require WalMart or eBay to sell it to you.

Whatever you feel about the “political correctness” of business decisions by private companies, please, for the love of the Constitution, do not ever say, “But what about my rights of free speech?”

Footnotes   [ + ]

1. What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.
2. CNN has the story
3. The LA Times has the story
4. Reuters has the story
5. in this blog post
6. with peace and love
7. Univision also did not violate the First Amendment by breaking up with Donald Trump
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