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Thoughts on the First Amendment following President-Elect’s Controversial Tweets

President-elect Trump has been busy on his Twitter feed and took the time recently to suggest that those who burn the American flag should lose their citizenship.

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We hope and trust that Mr. Trump will learn a bit more about the history of the First Amendment. Co-founder Susan Glisson co-wrote, with Charles Haynes and Sam Chaltain, First Freedoms: A Documentary History of First Amendment Rights in America.  It includes an essay (below) by Glisson on the history of protecting flag burning as freedom of expression.

The book, geared toward middle and high school-age students, is available here.

“On August 22, 1984, Gregory Lee Johnson protested the renomination of Ronald Reagan for President during the Republican National Convention in Dallas, Texas. Johnson, age twenty-seven, was a member of the Revolutionary Communist Youth Brigade, which had taken militant stances against the Reagan administration’s foreign policy. Along with other protest groups, Johnson’s organization constructed a march route that took them past many of Dallas’s downtown businesses, culminating at City Hall. Along the route, the protesters chanted obscenities and shouted slogans such as “eat the rich, feed the poor.” Some entered area businesses along the way, causing minor petty vandalism but injuring no one.

Finally, at the steps of City Hall, some marchers set fire to an American flag, singing songs printed on sheets with lyrics such as “Red, white and blue/ we spit on you./ You stand for plunder, you will go under.” Afterward, many of the protesters cooled off in the city fountain.

But as the march concluded, police moved in to arrest the protesters on charges of “disorderly conduct.” Initially, police included the twenty-seven-year-old Johnson–whose anti-American views first took shape when as a child he sold newspapers on an army base in West Germany and spoke with soldiers who had come to see the conflict in Vietnam as a war of aggression–in the arrests. The police soon dropped the disorderly conduct charges, however, and charged Johnson instead with “desecration of venerated object,” using a portion of the 1973 Texas state penal code that forbade an individual to “deface, damage, or otherwise physically mistreat [a state or national flag] in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.”

Three other protesters were charged with flag desecration; only Johnson appeared in court to fight the charges. Eventually, the Indiana native pleaded his case all the way to the U.S. Supreme Court. In response, the Court handed down one of the most significant free-speech cases of the twentieth century.

Surprisingly, given its modern iconic status, the early life of the American flag was unremarkable. Congress passed a resolution declaring the composition of the United States flag in 1777, after an American Indian requested a banner to protect tribal emissaries traveling to meet with the legislature. The creation of an official national flag went unreported in any press, however, for ten weeks. In addition, the first flags varied widely in adhering to the approved design, and they were rarely used in public display. In fact, it was not until the Civil War that the flag began to be flown widely, and even then it was generally flown to designate federal buildings and Union ships at sea.

Today, of course, the flag is a potent crucible for discussions on the First Amendment and on what limits the nation should place on free speech. These concerns culminated in the Johnson case. The central issue was whether burning a banner held so dear by so many was an act of “fighting words” meant to provoke breaches of the peace. Consequently, in its case against Johnson, the state of Texas needed to prove that its desecration statute prevented disorderly conduct, and that the young protester’s act of flag burning was not a constitutionally protected form of expression.

In the end, the U.S. Supreme Court ruled it was unable to show either. There was already another Texas statute outlawing breaches of the peace, the Court observed, so the 1973 desecration statute was redundant. More significantly, the Court ruled that symbolic speech is protected by the First Amendment. Justice William Brennan, writing for the narrow five-to-four majority, asserted that “the right to differ is the centerpiece of our First Amendment freedoms.” He pointed out other decisions that protected different forms of symbolic expression, such as picketing or wearing armbands. And as Johnson’s act did not incite a riot, Brennan explained that the “fighting words” doctrine–a standard first articulated by the Court in 1941–had no relevancy to the case. Thus, it became a matter of whether or not offensive speech was protected by the First Amendment. Justice Brennan wrote decisively in this crucial matter. “If there is a bedrock principle of the First Amendment,” he wrote, “it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Brennan further asserted that he believed the flag’s place as a symbol of democracy was strengthened, not undermined, by the decision to protect free speech.

Chief Justice William Rehnquist disagreed. Writing on behalf of the four dissenting justices, Rehnquist suggested that the American flag deserved special protection and warranted certain restrictions on speech. The chief justice wrote,

The American flag, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. “The flag is not simply another ’idea’ or ’point of view’ competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the [laws] which make criminal the public burning of the flag.”

Rehnquist’s passion swayed many in the public, including a number of politicians, who moved quickly to pass the Flag Protection Act of 1989. Opponents of the act moved quickly, as well, burning an American flag on the Capitol steps.

Before long, federal officials asked the Court to reevaluate its opinion in the Johnson case. In the same five-to-four split, however, the Court held its ground in the 1990 case of United States v. Eichman. Again writing for the majority, Justice Brennan wrote:

[I]t is clear that the Government’s asserted interest in protecting the “physical integrity” of a privately owned flag in order to preserve the flag’s status as a symbol of the Nation and certain national ideals is related to the suppression, and concerned with the content, of free expression. The mere destruction or disfigurement of a symbol’s physical manifestation does not diminish or otherwise affect the symbol itself.

Justice John Paul Stevens saw the issue another way.  He wrote in his dissent,

“. . . the Federal Government has a legitimate interest in protecting the symbolic value of the American flag. Obviously that value cannot be measured, or even described, with any precision.  It has at least these two components: in times of national crisis, it inspires and motivates the average citizen to make personal sacrifices in order to achieve societal goals of overriding importance; at all times, it serves as a reminder of the paramount importance of pursuing the ideals that characterize our society.”

Since the 1990 flag cases, the American public has continued to debate the decisions, and Congress has continued to consider passing an amendment protecting the flag. If adopted, it would become the first amendment to the First Amendment in history.”

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Sustainable Equity to Assist in Community Race Discussions

I’m proud to say that our firm is supporting this effort (link below). In the midst of a hard week, it is helpful to have something hopeful to look forward to, of a city taking on the hard task of historical dialogue on race in order to present harms. There will be no quick fix going forward. We will all have to role up our sleeves and connect and listen to each other.

-Susan

Mayor’s discussion on race to start Saturday [Boston]

Video

Race Amity: Mississippi Learning 2014

In 2014, Susan and Charles discussed the history of violence and racial tensions in Mississippi with a great group of people. They also discuss the work for racial reconciliation that has been accomplished. You can walk through events of Neshoba County, Philadelphia, Mississippi, the integration of the University of Mississippi and other realities of Mississippi’s past. We hope you enjoy this conversation with Susan and Charles!

Article

A Few Thoughts on Complacency and Repair

Our current situation has prompted me to go in search of sources that attempt to analyze what is at the heart of the decision voters are making for Tuesday and even deeper than that, what is at the heart of the rancor that appears to exist between so many of us. I believe that the vitriol and division are deeper than that which exists between the political parties and reflected in this current election, though they are a symptom that has its own side-effects.

For too long now, we as Americans undervalued being informed, a condition which generally comes from a rigorous education with training in critical thinking. For too long we have settled for corporate-driven media, owned by a small number of folks, who have made fortunes titillating us with every salacious rumor about “celebrities,” such that our election cycles now seem much more like an American Idol competition than a serious investigation of values and policies that care for each of us and support our unity. We’ve replaced those sources with social media, which too often isolates us in our own echo chambers of reinforcing and not always accurate self-narratives. And we have avoided or ignored talking about the painful parts of our history, the patterns of which, if studied, reveal a deep divide founded in racial discord, in a mentality that values one group over others (in our case it has looked like white supremacy; other countries have manifested their hierarchies of human value in other ways). (And by the way, “whiteness” and racism haven’t just harmed and dehumanized people of color; they have dehumanized “whites” too.)

We have valued dollars over people. We have disconnected ourselves from the land and from the water that supply our basic needs and from each other and from Spirit, which renders us diminished in soul, empty and angry. But because we haven’t valued critical thinking and authentic connection, we too often lack the tools to understand why we are where we are and what we can do about it. And so we anesthetize ourselves with literal and figurative stuff we don’t need and which doesn’t fulfill us (just go check the profit margins of the self-storage industry or say the comments section of any news article).  

We have become complacent, which means literally to please one’s self, self-satisfaction in spite of or because of ignorance of actual dangers. In short, because we do not really know ourselves or each other deeply, we do not truly know each others’ sorrows and joys. So we do not know what others have experienced that causes them to make the life choices they do. Sometimes, we don’t even know why we do what we do!

Here’s the good news. Complacency is cured by proximity and authentic connection to others, especially to those we deem “not us.” We can repair the damage we have done to ourselves and to our country. We can “come home to,” ourselves and to each other, as the Latin origin describes “repair.” 

I’m not speaking of an industrial project, on massive scales, mechanized and largely independent of human involvement. I’m talking about the grassroots, community-level kind of work we must all do. On November 9th and going forward, we can punish and exclude based on who others voted for or we can try to understand, to empathize, and to embrace. 

The theologian Reinhold Niebuhr argued that, “Ultimately evil is done not so much by evil people, but by good people who do not know themselves and who do not probe deeply.” We need time to fall in love with each other. To listen deeply to each other, one-on-one and in small groups, face to face, as Puanani Burgess says. Nothing else will replace this everyday, local work.  

And here’s how such a conversation might go: ask each other first, “what your highest hope is for your community?” Allow as how you might not know everything and would like to understand where the other person is coming from. Ask open and honest questions, ie, ones you don’t know the answers to. Do this over and over again until you build the muscle memory of respectful and civil and truthful conversation, until you create a new pattern of interacting that is healthy and whole and second nature to you. If we commit to such a process, synergy and consensus about what we should do together will emerge. I promise because I’ve seen it happen every single time a group has done that hard work of listening and learning together. 

When we do this, we will create the world our children deserve, because justice, as Cornel West has said, is what love looks like in public.

-Susan

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Positive Words about Our Recent Experiences 

So, Charles and I have been in 7 states in the last 3 months, working with various groups on trust-building in order to support relationships that can weather conflict and find more inclusive and just solutions for the challenges that face us all.

Along the way, we have been deeply moved by the basic decency of folks we’ve met in every place. In Iowa, the hotel restaurant hostess brought us in homemade pumpkin donuts because we were away from home for a week. In SC, good friends taught us to make “Moscow mules” and made sure we had a nice dinner out. In Virginia, we met an amazing team of people who look out for each other, on and off the job and who work with local school kids to encourage them to love science and technology. In Oregon, Todd Flack took us to the most amazing restaurant just so we could see the sunset from the prime spot in his valley. His entire crew made us feel welcome. In CA, the hotel staff let us use their printers when the lobby ones broke down and if you are ever in Birmingham, please go by the Hilton Perimeter Park South and have whatever Miss Angela’s soup of the day is. It’s worth braving the traffic on Hwy 280. And say hi to L’Tonya M. Lominy and Miss Laurie Beth and all of the staff there who have treated us like family for the last 3 weeks. And OMG, Capt. Wiley’s steak beat the ones at Peter Lugers in NYC and his wife Mary’s mac and cheese and red velvet cake were as good as my Aunt Virginia’s and Aunt Joann Thomason. Be on the lookout for Birmingham Equally United #BE_U which will be a beacon of light and healing there. And these are just a few of the stories of goodwill and hope and light. Just yesterday, some of my favorite people on the planet who happen to live in New Orleans sent me word of on-going intergenerational community building there. Every. Single. Place. Has had lovely people making strangers feel like family and working to build better communities.

There is plenty to be sad about right now and the media makes sure to catastrophize every insult. We do not hear enough of the other stories. Social media is filled with folks on the left and right in their own echo chambers, blasting away at each other in dehumanizing and polarizing language and we’re told visits are up to counselors’ offices. The seeds of our own humanity are just inside, ready to be watered and given light. Empathy, compassion, understanding, respect–these are values that must be practiced and cultivated. But they feel so much more joyful and pleasurable than fear and anger and suspicion. We have the ability to take another path, of light and love and equity and freedom.

It starts with you and me. Right here. Right now. Love heals. 

Susan 

Groups

#Be_U of Birmingham, AL

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“Check out Birmingham Equally United!! Here are most of the folks we’ve spent 3 weeks with and we were so happy to welcome Jarralynne Agee from the Birmingham mayor’s office to brainstorm way to support the group’s work going forward. Positive change can happen! As the poet Marge Piercy teaches, ‘it starts when you say we and know who you mean and each day you mean one more.’ #BE_U #ThisFamilyIsMyWe” -Susan