More than 138 years after its creation, the Confederate battle flag remains a potent symbol.
The Confederate flag flying over the South Carolina statehouse has spurred an economic boycott by the NAACP and ignited public debate and discussion in the presidential primaries.
The arguments are familiar: Supporters of the flag say it honors those who valiantly fought for the South in the Civil War. Critics say the Confederate flag is a symbol of racism and an ugly reminder of slavery.
Few symbols rival the Confederate flag for the ability to evoke such a wide range of passions. It is perhaps not surprising that those passions tend to run along racial lines.
A Mason-Dixon poll conducted in January found that 77% of African-Americans believe the flag is a symbol of racism, and just 9% characterize it as a symbol of Southern heritage. Sixty-six percent of whites responding to the survey said the flag symbolizes Southern heritage, while just 21% describe it as a symbol of racism.
The South Carolina debate is unusual in that it involves symbolic and controversial speech in a public setting but does not directly involve the First Amendment.
The First Amendment prevents government from interfering with the public's free speech; the irony here is that members of the public are trying to stop the symbolic speech of a government body.
In the end, this boils down to a public-policy decision. Does the government of South Carolina want to operate under a symbol that a significant percentage of its population regards as racist?
This is a controversy that will be resolved after extensive public debate and discussion. News media coverage, advocacy groups and political pressures all ensure a public resolution to a public problem.
Contrast that, though, with how we handle similar controversies involving the Confederate flag and a younger generation:
Last May, a Stewart County, Tenn., high school student was suspended from school for three days because he incorporated four Confederate flags into a collage as part of a class assignment. Kenny Perry superimposed one of the flags over the face of boxer Mike Tyson in artwork intended to demonstrate "who I was, who I am and who I am going to be." The English teacher graded the assignment and displayed it in the hallway of the school. After the principal saw the artwork, the young man was suspended because his collage was regarded as "racially hostile speech."
Still pending is a lawsuit against two assistant principals in Volusia County, Fla., who suspended 16-year-old student Wayne Deno for nine days for showing his friends a miniature Confederate flag during a lunchtime conversation about the Civil War.
A Kansas middle school student was suspended for three days for sketching a Confederate flag on a notebook in class. T.J. West was told he violated a policy that prohibits material that is "racially divisive or creates ill will or hatred."
In Midland, Texas, a principal censored a high school newspaper editorial that called on students not to wave a Confederate flag at athletic events. The administration's reasoning: The symbol of the Confederate flag is so divisive that even a well-meaning editorial speaking out against it could lead to disruption.
While adults can work out their differences using the full force of free expression, we too often impose a "zero tolerance" policy for controversial ideas in the nation's schools.
To be clear, the U.S. Supreme Court has recognized the right of administrators to limit student expression if there's a strong likelihood of substantial disruption in the school. But that is intended to prevent fistfights, not eliminate hurt feelings or offended sensibilities. In our most recent State of the First Amendment survey, we found that 78% of Americans would not allow the public airing of comments that might offend persons of another race. That's an extraordinarily high number and a surprising one.
Much of the progress we've made in civil rights in this country has come through the exercise of First Amendment rights. That has included marches, rallies and, yes, controversial and often confrontational comments directed at others.
By not permitting people to make comments that might potentially offend, we minimize confrontation, but we also eliminate candid and constructive conversation.
Provocative symbols like the Confederate flag can indeed pull us apart, but the free and open airing of these issues offers us our very best chance of pulling together.