An American flag, an art exhibit, and why free speech on campus is more complicated than you think.
A traveling art exhibit featuring an artistic depiction of the American flag has angered conservatives. A lot.
They’ve called it “outrageous” and “offensive” to “red-blooded American patriots,” and they’ve demanded that it even be destroyed. A candidate for the US House of Representatives has set up a petition on her campaign website to have the exhibit taken down, saying, “desecrating our flag that many have fought and died for is not acceptable.”
One image in the exhibit seems to be the main target: a painting depicting the American flag festooned with black paint and a sock.
Across the country, conservatives are fired up about what they view as attacks on the vigorous expression of free speech on campus, as students rally against Trump, try to block controversial speakers and protest on campus. Some have even used a term — “outrage culture” — to criticize a student body on campuses nationwide they view as perpetually offended by imperceptible slights and “microaggressions.”
The Trump administration, always eyeing a good fight, has picked up on the movement, too. The White House held an event in March, “Crisis on College Campuses,” which covered opioid abuse and free speech. The Justice Department recently backed a suit against the University of Michigan for its “bias response teams.”
Addressing the @TPUSA high school summit this morning, Atty Gen Jeff Sessions warned that “freedom of thought & speech on the American campus is under attack.” Addressing the conservative gathering, Sessions decried political activists who “try to intimidate people into silence.” pic.twitter.com/MTiH6MNZhi
— Mark Knoller (@markknoller) July 24, 2018
But for conservatives, this case is different, putting them on the opposite side of the free speech argument. Though the Supreme Court has said several times that desecrating, or burning, or putting symbols on the flag is an expression of free speech — writing in one opinion, “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” — many on the right don’t want to hear about it. Instead, they want the exhibit gone.
Critics of conservative free speech crusaders argue that their stance isn’t really a defense of the First Amendment at all. It’s an empty gesture to back the expression of controversial and unpopular ideas, like arguing “feminism is cancer” or that birth control makes women unattractive, if the same champions of free speech turn around and demand a controversial art display be taken down due to its “offensiveness.”
While it’s not even clear if there’s any shift at all in free speech rights on campus — as my colleague Matt Yglesias writes, the data suggests college graduates are becoming more tolerant of speech, not less — the debate is nonetheless carrying on whether it’s about race and policing, or the American flag.
The battle flag that started a war over free speech
What’s gotten Kansas Republicans so upset — and museum curators at the University of Kansas and other universities so concerned — is this flag.
Here’s a description of the piece, created by German-born artist Josephine Meckseper:
Her flag is a collage of an American flag and fragments of an earlier work of hers entitled “Goodbye to Language.” A black dripped color field resembles a United States map, divided in two. The black and white sock takes on a more symbolic meaning of polarization, but also stands for creating a dialogue about our collective future and the one of our planet.
The flag is part of a year-long exhibit of a serialized commission entitled “Pledges of Allegiance,” in which 16 artists were tasked with creating a flag focused on “an issue the artist is passionate about (and) a cause they believe is worth fighting for,” while “speak(ing) to how we might move forward collectively.” “Untitled (Flag 2)” is actually the final in a series of flags displayed at the University of Kansas and other universities, an effort that began on Flag Day 2017 and will end on July 30.
But it was this flag in particular that seemed to stir up feelings among conservatives and Republicans. That includes members of the University of Kansas College Republicans (who called it “absolutely disgusting” and “distasteful.”), and some powerful Republicans, like Kansas Secretary of State Kris Kobach.
Kobach very nearly became head of Homeland Security. He once drove this car — complete with a fake machine gun — in a parade (and defended doing so against “snowflakes” and “outrage culture”).
The outrage over the replica gun on the back of a patriotic jeep is the left trying to attack guns and your #2A rights. I will not back down in the face of a snowflake meltdown and outrage culture. https://t.co/FONJBWZWMM #ksleg pic.twitter.com/TEtyFtQ7rT
— Kris W. Kobach (@KrisKobach1787) June 4, 2018
He urged the University of Kansas to remove the exhibit on the grounds that “patriotic Kansans and Jayhawks were outraged.” “I think it’s outrageous and inappropriate that a taxpayer supported institution would display a desecrated American flag using the excuse that it’s art,” he said in an interview.
One Republican politician is even campaigning on the issue directly. Caryn Tyson is running for the US House of Representatives, and on her campaign website sits a petition to “remove (sic) desecrated flag from the University of Kansas’ campus.” In an interview with the Topeka Capital Journal, Tyson said: “This desecrated flag should never have been displayed and doesn’t belong in the museum at KU where it now resides. In fact, using the museum as a display case for anti-American bigotry is immoral and appalling.”
In an interview with Fox News columnist Todd Starnes (who said he was alerted to the flag by a reader who, “like any right-thinking, red-blooded American patriot … was enraged” by it), Kobach said: “It’s outrageous that you would see a public university displaying a desecrated flag. The fact they call it art does not make it any less of a desecration of our flag.”
It’s outrageous that you would see a public university displaying a desecrated flag. The fact that they call it art does not make it any less of a desecration of our flag. I call upon the university to take down that flag right away. https://t.co/sCFzSHEzI1 #ksleg #TeamKobach
— Kris W. Kobach (@KrisKobach1787) July 11, 2018
Then Kansas Gov. Jeff Colyer chimed in, demanding that the flag be taken down on the grounds that the exhibit was “disrespectful”:
“The disrespectful display of a desecrated American flag on the KU campus is absolutely unacceptable. Men and women have fought and died for that flag and to use it in this manner is beyond disrespectful. I spoke to leadership to demand that it be taken down immediately.” #ksleg https://t.co/WkZSX2LyZg
— Governor Jeff Colyer (@GovJeffColyer) July 11, 2018
When the flag was removed from an outside location on July 11 and relocated to inside the Spencer Museum of Art (due to “safety concerns” after one reported harassing phone call), that wasn’t good enough for either Kobach or Gov. Kolyer. Kobach urged that the entire exhibit be removed from public view entirely.
— Kris W. Kobach (@KrisKobach1787) July 12, 2018
And Colyer? He told Todd Starnes that the art exhibit should be “disposed of.” “Anytime you retire a flag, desecrate a flag or [have] a worn-out flag, you can call the American Legion, the Boy Scouts, and they will fold it properly, dispose of it properly and with respect. And I’d be happy to make that call.” (It’s worth noting that Kobach and Gov. Colyer are battling for the Republican gubernatorial nomination this fall.)
“Censorship comes from all sides of the ideological spectrum”
In response, a number of anti-censorship organizations, including the ACLU and the Foundation for Individual Rights in Education (FIRE), have come together to ask officials at the University of Kansas that the flag exhibit be restored.
In an open letter, the groups cited Supreme Court cases, most notably the case Texas v. Johnson, which ruled that burning or desecrating a flag was protected speech. The groups said the flag’s removal from public viewing on KU’s campus on reported “public safety” grounds was “an unacceptable result at a public university legally bound to uphold the First Amendment.”
Will Creeley, senior vice president of Legal and Public Advocacy at FIRE, said that by responding to threats, the university had backed away from its duty to defend speech, even unpopular speech. “By removing artwork from a public space because state lawmakers don’t like its message, KU has abandoned its First Amendment obligations to the detriment of all campus community members and the public at large,” he said. “State-driven censorship of dissenting speech is precisely what the First Amendment is intended to prohibit.”
While many conservatives have defended the importance of free speech, even speech that offends and outrages, particularly on college campuses, the flag has been, in Creeley’s words, a “flashpoint for censorship for decades” — particularly for those on the right who believe that the flag should be protected apart from other forms of expression. As the late Chief Justice William Rehnquist put it in his dissent to Texas v. Johnson:
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 Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.
National Review’s Rich Lowry wrote in 2017: “The American flag isn’t a Confederate monument — indeed the opposite. Our military fights under it. The flag drapes the caskets of the fallen and is folded in a solemn ceremony at military funerals, with practically every movement fraught with religious and patriotic meaning. It is not to be trifled with — unless you intend to insult the country for which it stands.”
But that’s not how the Supreme Court interprets it. As Justice William Douglas wrote in a concurring opinion in another flag-related case:
If absolute assurance of tranquility is required, we may as well forget about free speech. Under such a requirement, the only `free’ speech would consist of platitudes. That kind of speech does not need constitutional protection.”
Free speech includes hate speech. And, as the Supreme Court has ruled multiple times, it also includes flag-burning and flag “desecration,” unpatriotic speech, and “enraging” and “outrageous speech,” too.
However, Supreme Court precedent has done little to change the views of many American conservatives who view desecration of the flag not as an expression of free speech, but as a threat to the American system of government and a statement against the United States.
Free speech, when it’s speech we like
Some critics question the conservative commitment to campus free speech beyond the flag, arguing that many conservatives stand up for controversial voices like Milo Yiannopoulos and Ann Coulter, or occasionally, even outright white supremacists like Richard Spencer, but when it comes to speech they don’t particularly like, speech they think is “un-American” or “enraging,” they seem to take a very different stance.
“When conservatives limit left-leaning speech,” Aaron Hanlon wrote in the Chronicle of Higher Education last year, “we’re spared the handwringing about campus echo chambers, ‘crybully’ students, and the end of free expression.” That includes, Hanlon writes, pro-Trump students shouting down a Democratic politician and ending his event, or Jerry Falwell Jr. threatening an anti-Trump evangelical pastor visiting the campus of Liberty University with arrest because, Falwell argued, “if we allowed him to come on campus and protest uninvited, then the next group that comes in might be a violent group.”
One of the largest conservative campus organizations in the country — one that says it champions free speech on college campuses, while decrying liberal “censorship” — runs a program called “Professor Watchlist.” It was originally intended to “expose and document college professors who discriminate against conservative students, promote anti-American values, and advance leftist propaganda in the classroom”. The watchlist lists the names and affiliations of college professors whose opinions and views submitters find offensive.
At least one popular conservative pundit has argued that prominent Trump critics should be arrested for “sedition.” Speaking of Rep. Maxine Waters, the pundit Michael Savage said: “Where she says, ‘I do not respect this president,’ basically she is encouraging people to riot against him, riot against Republicans, commit mayhem against the president.” (The same figure did not appear to feel the same way about the previous president, saying in 2014 that Obama should be “arrested” for treason.)
There are myriad other examples of left-wing speech under threat just on college campuses, like the case of George Ciccariello-Maher, who was placed on leave at Drexel University because of tweets and his argument that mass shootings were the result of “white supremacist patriarchy,” or Randa Jarrar, a professor at California State University Fresno who criticized former first lady Barbara Bush on Twitter and got pilloried for it, with some demanding she be punished or even fired by the university for her “hateful remarks.”
In short, according to some conservatives, some offensive speech is too offensive for free speech protections.
“Don’t tread on our flag bitch”
Now, another university hosting the same flag exhibit has received threats on Facebook and at least one call to the university’s administration.
At Rutgers University, Bonnie Wilson, collections assistant in digitization at the Zimmerli Art Museum, said that after Fox News reported on “Untitled (Flag 2)” and the flag exhibit — which had been in place outside the museum since 2017 — the response online was swift and furious. “I cannot recall anything like this happening before, and I’ve been at the museum since 2005,” she told me.
One of the messages the museum received read: “A German Artist. Maybe you should be doing art that apologizes for the millions killed by your homeland cronies. Don’t tread on our flag bitch, instead do something positive to make amends for the murder of millions of Jews and Polish people perpetrated by your grandparents and their generation.”
In response, Wilson told me, the administration asked that the exhibit be moved inside, and the director gave in, which disappointed Wilson. “Why work at an art museum,” she told me, “if you can’t be proud of how the visual arts contribute to the conversation over free speech and human rights?”
Author: Jane Coaston