Federal Court Rules That American Flag Is In Same Category as Child Pornography

by Gerard Emershaw

The First Amendment states: “Congress shall make no law … abridging the freedom of speech, or of the press.” However, it has been acknowledged that “the right of free speech is not absolute at all times and under all circumstances.” As a result, there are many categories of speech that are not protected by the First Amendment—i.e. fighting words, obscenity, child pornography, imminent incitement of illegal activity, threats, solicitations or offers to engage in illegal activity, and libel.

The 9^th U.S. Circuit Court of Appeals recently ruled that Live Oak High School, in the San Jose suburb of Morgan Hill, acted appropriately when it banned students from wearing T-shirts featuring the American flag during a Cinco de Mayo celebration with the alleged purpose of preventing violence. According to school officials, there was a history of violence between white and Hispanic students on that day in the past.

In essence, the Court has placed the American flag in the same category as child pornography. It has transformed Old Glory into fighting words. The Stars and Stripes are apparently no different than yelling at someone: “Hey MFer, your mother is a @#*%$!” The very symbol of the Republic has no more value and is no more deserving of First Amendment protection than verbally threatening to murder someone.

By allowing the American flag to be banned on May 5, the Court has sanctioned the idea that a threat of violence can shut down free speech. In the future all that a group will have to do in public schools is to threaten violence against others if it wishes to shut down that group’s free speech. If a high school Young Republicans club wishes to shut down the speech of a Young Democrats club—or vice versa—all it must do is threaten violence. The Court is allowing Live Oak High School to attempt to prevent violence by endorsing violence as a legitimate means to bring about change. This is perverse.

It is impossible to view a T-shirt with the American flag on it as a form of fighting words in this context. The United States was not involved in the Battle of Puebla that is celebrated in the Mexican holiday Cinco de Mayo. It was Napoleon III’s French army. But what if a student wished to wear a shirt with a French flag on that day? What if students wished to wear a T-shirt with an American flag on a day celebrating German heritage, Japanese heritage, Vietnamese heritage, or some other culture whose home nation the United States has waged war upon? The threat of violence will now be used as a way to shut down any and all speech, and court precedent will now allow it. A far better solution to the violence would be to punish any Cinco de Mayo violence so severely as to seriously deter it. Or perhaps the school could make May 5 into a school holiday. It would not be difficult to add another school day somewhere in the calendar to replace that school day.

When fear, politics, or political correctness allow the very symbol of the Republic—a banner under which so many brave men and women have died while defending freedom—to be banned like it’s child pornography, then something is wrong. The First Amendment no longer has any value. Even worse, this is being done in a school. This is teaching young adults that free speech has no value and that patriotism is something about which they should be ashamed.