Should you have the right to fly an ISIS flag?
posted at 6:41 pm on August 13, 2014 by Noah Rothman
Sadly, it’s not a hypothetical question.
“Police in Garwood, New Jersey, ordered that a militant flag associated with the Islamic State of Iraq and the Levant (ISIL or ISIS) be removed from the font of a local home after hundreds of online activists expressed fear and revulsion,” the Washington Free Beacon reported on Wednesday.
Garwood Police Chief Bruce D. Underhill confirmed to the Washington Free Beacon that officers had been contacted and residents at the suburban home “voluntarily” agreed to remove the flag.
Following the initial picture of the home, which clearly displayed the ISIL and Turkish flags on its front porch, Twitter users posted an updated photo that appeared to confirm that the black militant flag had been removed.
One local resident tweeted this picture along with the address of the home in question.
So, does this episode constitute a violation of these suburban homeowners’ First Amendment right to free expression? That is not an easy question to answer.
There are, of course, restrictions on speech and expression. Many are well-known, like the oft-cited cry of fire in a crowded theater which implies the intent to cause harm by inciting undue panic. There are also restrictions on speech which pertain to the incitement of violence.
“Freedoms of speech and the press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” read the majority opinion in Brandenburg v. Ohio.
With Islamic State forces ravaging the Middle East, and that fundamentalist group’s leadership threatening to raise this exact flag over the White House and warning Americans that they shall “see you in New York,” it is certainly true that ISIS wants to present itself as a threat to the United States. But is flying the black Islamist flag a direct incitement to violence? The burden of proof on anyone leveling that accusation is a heavy one.
While debating this matter on Twitter, one user suggested that the decision to fly this flag was clearly designed to intimidate the neighboring residents. In the same way that the Supreme Court found in Virginia v. Black that cross burning was not protected speech and represented prima facie evidence of a desire to intimidate others, flying this flag could be indicative of a similar intent.
The majority also found that a Virginia law prohibiting cross burning was unconstitutional, but that activity’s “long and pernicious history as a signal of impending violence” meant that it could be construed as a threat and is, thus, unprotected expression.
Does flying the ISIS flag “signal impending violence?” Maybe. Is there a “long and pernicious history” that leads anyone to reasonably believe that flag suggests violence is imminent? Certainly not.
Those who suggest that the neighbors were right in this case to complain about the flying of this flag have a lot to prove, but how about the rights of those who flew this offensive flag. Did police harass or intimidate these homeowners when they were politely asked to take the flag down? That, too, would be difficult to prove.
For the most part, this episode resolved itself in a welcome fashion. The police politely contacted these ISIS flag owners on behalf of their concerned neighbors, requested the flag be taken down, and the homeowners complied voluntarily. While the homeowners in this case have the constitutional right to resist that request, they were smart to accommodate the police.
This is not to say that those individuals declaring their allegiance to an organization bent on executing terror attacks inside the United States should not be monitored by domestic counterterror officials. That is another matter entirely.