‘Protect the Flag’ Bill Undermines Core Principles of Free Speech

December 9, 2016

The Protect the Flag Act (H.R. 6433), introduced in Congress last week, threatens to withhold federal funding from institutions of higher education that, “pursuant to an official policy of the institution to prohibit the display of the flag of the United States by the institution, removes, censors, takes down, prohibits, or otherwise halts display of a flag of the United States.” Federal funds are only restored

upon complete and proper reinstatement, by the institution in its official capacity, of the flag of the United States at any and all locations on campus property (including across multiple campuses, if applicable) from which a previously displayed flag of the United States was removed, censored, taken down, prohibited, or otherwise halted from display pursuant to an official policy of the institution to prohibit the display of the flag of the United States by the institution.

The legislation would effectively force institutions to fly the American flag—compelling speech—while also prohibiting institutions from communicating political criticisms of the government by refusing to fly the flag, unless they give up their federal funding.

The bill was likely inspired by the recent controversy at Massachusetts’ Hampshire College in which the institution temporarily decided to stop flying the American flag. Hampshire’s decision came after their own American flag was stolen and burned amongst protests that the flag, a proud symbol to some, represented fear and exclusion to others. According to CNN, the school’s Board of Regents then decided to lower the flag to half-staff in order to “continue the campus discussion on the flag’s meaning,” but some interpreted that decision as a protest of the election results. It was then that the college decided to not fly the flag at all, spurring harsh public criticism.

Regardless of the bill’s inspiration, what one does with their own American flag is undeniably core protected speech that is at the heart of the First Amendment’s protection. In Texas v. Johnson, the United States Supreme Court held that flag burning was protected speech. The Court’s holding applies to expressive uses of the flag—particularly where political speech is involved. The Court explained:

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable… We have not recognized an exception to this principle even where our flag has been involved.

As the Supreme Court eloquently set forth in West Virginia Board of Education v. Barnette:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Congress should heed the wisdom of Barnette and abandon this legislation.