The tragedy of a mass murder in Charleston, S.C., last week, obviously motivated by racial hatred, has raised anew the issue of the lawfulness of the State expressing an opinion by flying a Confederate flag at the Statehouse, and the constitutionality of the use of the First Amendment to protect hate speech and hate groups. The State has no business expressing opinions on anything, and it is required to protect hate. Here is the law.
Let’s start with the proposition that hatred of persons is a profound disorder, and it is no doubt motivated by far deeper errors of thought and judgment than admiration for a flag. I recognize that to some in our society, the Confederate flag represents resistance to federal authority enforced by military aggression; while to others, it represents racial oppression under color of law bringing about the worst violations of the natural rights of born persons in American history — namely slavery. To me, it represents both. Yet, the government has no business flying it.
In a lawsuit brought against the State of Texas seeking to compel Texas to offer automobile license plates bearing the Confederate flag, the Supreme Court in dismissing the suit ruled just two weeks ago that the government enjoys the same freedom of speech as do persons. This is a novel and dangerous idea. It places government — an artificial creature based on temporary consensus and a monopoly of force — on the same plane as human beings, who are natural creatures with immortal souls endowed by our Creator with natural rights.
Natural rights, foremost among which after life itself is freedom of expression, are gifts from God. They are not manmade and hence cannot be transferred to a manmade entity. They are as natural to us as are the fingers on our hands. We don’t need a government permission slip in order to exercise them.
In the case of speech, it is especially dangerous to accord the natural rights of persons to the government because the state can use its monopoly of force to silence, drown out or intimidate the speech of any persons it hates and fears. When the state speaks, its expressions have an aura of legitimacy and can be used for narrow, sectarian, even hateful purposes. But the whole purpose of the First Amendment is to keep the government out of the business of speech.