This doctrine made a distinction between unpopular speech that might generally advocate harmful or even illegal ideology vs. speech that called for a "clear and present danger," the type of speech that the government had the right to censor or punish.
While I am not arguing a legal point here, I would encourage rational analysis of whether there is any "clear and present danger" involved in flying or displaying the Confederate flag.
Any common sense or reasonable approach to the Confederate flag issue would conclude that:
- The Confederate flag poses no CLEAR DANGER to anybody. It is, to some, offensive, hateful, unpopular, in the same way that a thousand ideas may be offensive to me. But it does not hurt anyone. It presents no clear danger to any right, unless there is a right "not to be offended."
- There is no PRESENT DANGER. Even if you concede, for the sake of argument, that the flag once supported slavery, racism....or whatever, the Confederacy ended in 1865. Nobody on earth today believes or acts as if the Confederate government exists, or that it has any power to re-enslave, encumber, discriminate, kill, maim or harm any living person. Regardless of what the flag stood for in 1865 (that is clearly up for debate) - it has no power over anyone in 2015. There is no clear danger; there is no present danger.
- the 13th, 14th and 15th Amendments to the US Constitution
- the Civil Rights Act
- the Voting Rights Act
- the Equal Housing Act
- the Fair Employment Act
- and countless other pieces of legislation which make it nearly impossible to commit any meaningful act of discrimination against a member of the minority class.
- Numerous rulings by the federal courts that protect minorities against any infringement of constitutional rights.
Is there a right "not to be offended?" I don't believe so. I believe that minorities, in spite of their protected status, are still subject to the same offenses to their sensibilities, tastes, prejudices, opinions, likes and dislikes as the rest of us.
"Minorities, in spite of their protected status, are still subject to being offended, just like everyone else."
I am not protected against being offended, in most cases. If you set out to protect me against being offended, think of all the things you would have to outlaw, censor or eliminate. What if I am offended by Country Music? Do you censor or outlaw Country Music? What about rap? I am offended by abortion. I am offended by mosquitoes, spinish, opera, Natzism, Islam, a lot of religious beliefs that I deem to be wrong; I am offended by much of what I see on TV, and by many common words, phrases and ideas that I encounter every day. A lot of literature offends me. The list of things that offend me would take many pages if I were to write them all down. Are we to make a list of all the things that offend me and try to eliminate them? Are we to make a list of ALL the things that offend blacks (or women, or men, or seniors, or teenagers) and try to eliminate them from society? What would a society look like it it were totally void of all things that offend someone? I can't even imagine what a sanitary society of that nature would look like. It would, of course, be totally anti-democratic. Maybe it would resemble a radical Muslim Caliphate, even more extreme, perhaps.
Does anyone in America have a constitutional right not to be offended? I don't think so. And I don't believe such a goal could ever be achieved, not even by enslaving the entire population with a mandatory list of ideas that must be avoided.
Of course, the government should not go around trying to offend. It shouldn't, but it often does. I was offended when the US Government bathed the White House in pink light recently to celebrate a certain Supreme Court decision. But, I enjoy the right to be offended.
Being offended is part of the price for living in a free, or at least partially free society. When society begins trying to eliminate all things offense--it is a slippery slope that knows no boundary and if taken to the ultimate extreme ends in a dictatorship like Nazi Germany, Stalinist Russia, Communist North Korea or a Muslim Caliphate. People might even then still be offended but they would dare not let it be known.
What's the goal here? Would we not be better off if we could concentrate on clear and present dangers to civil rights instead of ideas that we find offensive, or symbols of those ideas?