“The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them they are wrong.” Justice William Brennan, writing for the Supreme Court of the United States in Texas v. Johnson, waxed poetic about the necessity of adverse speech to a democratic society. Justice Brennan was speaking specifically to protests involving flag burning. On Tuesday, September 20th, 2016, North Carolina high school teacher Lee Francis found himself in the middle of just such a controversy involving mistreatment of an American flag. The irony of Mr. Francis’ case is that he was trying to teach his students about their rights rather than protest anything.
Mr. Lee Francis is a history teacher at Massey Hill Classical High School in Fayetteville, North Carolina. On September 19th, during his Monday history class, Francis was teaching his students about their First Amendment rights. As part of the lesson, Francis wanted to demonstrate a form of protest to his students first-hand. Francis put the classroom’s American flag on the floor and stepped on it two times with a single foot. Two students left the classroom abruptly, a third student picked the flag up off the floor and took it away from Francis. A fourth student used a cellphone to take a picture of Francis with his foot on the flag.
“Controversies involving disrespect of the American flag have been a hot-button issue for decades, but have become especially common of late.”
The photo was circulated on Facebook, and sparked an uproar in Fayetteville and across the state. Francis was suspended with pay the next day, pending an investigation and meeting with the school superintendent. Many are calling for Francis to be fired, and others have threatened Francis’s life. Fayetteville is home to a large amount of military personnel and their families, with Fort Bragg, Pope Air Force Base, and Womack Army Medical Center all located in the same county. The presence of military families has only exacerbated the situation, as many locals feel that Francis’ actions disrespect the sacrifice borne by their loved ones.
The tension between Francis and the community is a microcosm of the tension throughout the country right now. Controversies involving disrespect of the American flag have been a hot-button issue for decades, but have become especially common of late. A social media campaign by “Black Lives Matter” where protestors stand on American flags, has been debated hotly across the United States. NFL players choosing to kneel, sit, or raise a single fist during the singing of the national anthem before football games have also caused a societal rift. Flag burning has been a popular form of social protest by those who feel marginalized by law enforcement and the government. And now, a teacher, wishing to educate his students on their rights, may bear the full brunt of a society at odds with itself, struggling to balance patriotism with protest.
“The First Amendment’s speech clause mandates that “Congress shall make no law . . . abridging the freedom of speech.”
As mentioned above, SCOTUS has already held that the desecration of a flag is protected speech. The focus of Justice Brennan’s opinion in Texas v. Johnson was the preservation of the First Amendment to the United States Constitution. The First Amendment’s speech clause mandates that “Congress shall make no law . . . abridging the freedom of speech.” Speech is not limited to the spoken or written word. Texas v. Johnson used a two-part test to determine when conduct falls within First Amendment protections. The conduct must embody an intent to convey a particular message, and there must be a great likelihood that the message will be understood by those who view it.
Brennan’s opinion, supported by a majority of the justices, classified the flag burning demonstration at issue in that case as expressive conduct, intended to communicate a political message that was clearly understood by those who saw it. That political message is one that we still witness today: protests against perceived injustice or overreach by government actors that is damaging the integrity of our national ideals. When “Black Lives Matter” or NFL players exhibit so-called “disrespect” for the American flag or patriotic traditions, their conduct is an expression of their political message. The explosive reactions of the general public in response to this conduct is a clear indicator that the message is understood by those who view this conduct.
“It cannot be gainsaid that there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to ‘preserv[e] the national flag as an unalloyed symbol of our country.’”
However, the government can still limit First Amendment speech. To limit First Amendment speech, the government must present a compelling interest for that limitation. Compelling interests that have been recognized by the government include preventing “imminent lawless action,” an interest affirmed in Brandenburg v. Ohio. Imminent lawless action means that speech is not protected if the individual acting intends to incite imminent and likely violation of the law.
The primary compelling interest expressed by Texas in Texas v. Johnson of preserving a venerated national symbol was accepted by the Court as legitimate. Justice Brennan commented in his opinion, “It cannot be gainsaid that there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to ‘preserv[e] the national flag as an unalloyed symbol of our country.’”
Perhaps Francis should have exercised some discretion in his lesson planning, but claiming that the interests of our nation are best served by blind worship of a symbol rather than public discourse, defeats the purpose of government “of the people, for the people, and by the people.”
However, the Court did not approve of the means by which Texas chose to limit flag burning. The means by which a limitation is enacted must be narrowly tailored to achieve the compelling interest. In that case, the Court was reluctant to allow the government to limit the political speech with which they disagreed, while reinforcing speech they supported. Justice Brennan’s position is that “there is a bedrock principle underlying the First Amendment . . . that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” In the specific case of the American flag, Texas v. Johnson requires that individuals should have the right to express their opinions against the flag. The government cannot limit political speech that they do not agree with while allowing speech they do agree with.
In the case of Mr. Lee Francis, informing students of their rights is hardly a social ill. Rather, it is the civic duty of high school teachers, responsible for the formation of young minds, to train their students in their rights. Public image requires that thin skin and hot tempers be smoothed, but the reality of this issue is that students need to know about the rights that are fundamental in our society. If that makes them or their parents uncomfortable, so be it. Perhaps Francis should have exercised some discretion in his lesson planning, but claiming that the interests of our nation are best served by blind worship of a symbol rather than public discourse defeats the purpose of government “of the people, for the people, and by the people.”
Lee Francis may be fired in the coming weeks. He may be sacrificed on the altar of a public at war among themselves. He may be placed on a national stage that he neither chose nor wants. We should remember that Francis’ only crime was attempting to teach children their rights. We should also remember that Francis’ conduct has been specifically acquiesced to by the Supreme Court of the United States as protected speech. As Justice Brennan said in Texas v. Johnson, “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”