In recent years, flag restriction rules, policies and laws have been cropping up across the country. Whether the government is telling you what you can fly or what you cannot, there's always something behind the flag.
We dig into how, why and when it's legal for the government to decide what you can or cannot fly and hear from Halifax, Massachusetts, about what a flag controversy revealed about that town.
Transcript
Hannah McCarthy: [00:00:00] Nick, you know how a couple of episodes ago, we learned about America's singular obsession with the Stars and Stripes? Well, today we're going to hear [00:00:10] another story about how in this country flags can spark some big feelings. But this time, it's not about the American [00:00:20] flag, although that does play a role. It's a story about what happens when you use a flag to advocate for peace in the classroom.
Nick Capodice: [00:00:30] Huh. [00:00:30] That sounds kind of Tinkery. Hannah Tinker v Des Moines, the landmark 1969 Supreme Court case, the money quote being it can hardly [00:00:40] be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, end quote. For anyone who doesn't know, Mary Beth and [00:00:50] John Tinker wore black armbands to school to protest the Vietnam War. The armbands were banned. That's a little hard to say by the school district. [00:01:00] The whole thing went to court and all the way up to the highest court, and the tinkers won, so to speak. The ban on bans was indeed a violation of the First Amendment.
Hannah McCarthy: [00:01:10] It [00:01:10] is Tinkery. But this is very much a story of today for reasons I hope will become clear. We're going to talk about something that happened in [00:01:20] Halifax, Massachusetts in 2021.
Dana Cataldo: [00:01:23] So my name is Dana Cataldo. I'm the new digital producer here at Civics 101. I do a bit of video producing, [00:01:30] um, and a bit of social media producing.
Nick Capodice: [00:01:32] By the way, if you've seen more of us on Instagram or TikTok lately, that is all thanks to Dana's excellent work. If you haven't, follow [00:01:40] us at Civics 101 pod to see me cook and to see Hannah reenact iconic scenes from movies. Okay, I digress back to Dana.
Dana Cataldo: [00:01:48] When I was working at HuffPost in 2021, [00:01:50] I saw this article get dropped in one of the Slack channels where you usually drop in, uh, different like, uh, headlines that we might see come across from different regional [00:02:00] news networks around the country. And I was so surprised to see the very familiar looking sign posted in front of Halifax Elementary School that I [00:02:10] attended when I was a kid. The headline that accompanied this was that the Halifax Elementary School had banned peace flags from the classroom. And so it [00:02:20] was something that, just like it bore a hole in my head and I had to like I couldn't stop thinking about it.
Nick Capodice: [00:02:29] Hang on the peace [00:02:30] flag. What is that exactly?
Dana Cataldo: [00:02:31] It's like ten vertical stripes. There's like skin tones and like rainbow stripes that are included in there. Um, it [00:02:40] has the word peace in black lettering across it. And from what I understand, the whole idea behind it was it was this all inclusive, like, you know, racially inclusive, [00:02:50] um, sexual orientation and gender inclusive flag that someone made. I'm usually not like, very like ear to the ground when it [00:03:00] comes to flags. Anyways, I'm like not usually a flag waver. So I just kind of saw it as like one of those peace flags that has like, you know, stripes and like, like inclusion or peace or something kind of to those [00:03:10] effects. To me, it was like this generic thing. And I was just surprised that there was this outrage over something that sounds like this.
Archival: [00:03:15] The peace flag has every single color on it. So that to me, that [00:03:20] should mean that it represents every single thing.
Archival: [00:03:23] Ten year old Charlie Eldridge is in the fifth grade at Halifax Elementary School. Recently, his teachers and classmates hung these [00:03:30] peace flags up on the back walls of their classrooms. Charlie says they hung them as a reminder.
Archival: [00:03:36] That up there was showing that everyone should have peace and [00:03:40] not be rude, mean and just accept people for who they are.
Archival: [00:03:44] But the flags were recently removed after the principal received requests from parents who wanted to display other flags [00:03:50] in the classroom as well. In fact, the school superintendent sent home a letter addressing the issue, saying some parents felt their kids were being politically marginalized, saying under equal [00:04:00] access laws and regulations, we had to provide access to numerous points of view and cannot discriminate based on a particular viewpoint.
Nick Capodice: [00:04:08] All right. Pause here. The [00:04:10] school said it cannot discriminate based on a certain viewpoint. I don't know exactly what that means.
Hannah McCarthy: [00:04:18] Viewpoint discrimination [00:04:20] is when the government regulates speech based on its specific, quote, motivating ideology, unquote, or the speaker's quote, opinion or perspective [00:04:30] unquote. And the Supreme Court has said that this kind of regulation is, quote, an egregious form of content discrimination. It is a [00:04:40] classic First Amendment violation.
Nick Capodice: [00:04:42] Okay. And in a school, for example, where there is some speech regulation allowed for certain reasons. What [00:04:50] about that?
Hannah McCarthy: [00:04:51] Even then, the government is not allowed to permit some viewpoints and not others, with some rare exceptions that I will talk about later. But that does [00:05:00] bring me to a major part of the story we heard from a kid, Charlie, in that news clip. He was the one who saw the peace flags as being representative [00:05:10] of, well, peace. So the other day, Dana and I called up Charlie and his mom, Lana, and asked them to rehash the events. Here's [00:05:20] Lana.
Lana: [00:05:21] You know, I'll be honest. When Dana first reached out, I was like, oh my God, do we really want to rehash all of this? Like it was. But basically for Dana, I would [00:05:30] do just about anything. At one point, they had changed the design of the flag from, I believe it was. The word [00:05:40] peace was written in white lettering to change it to black lettering to include support for the Black Lives Matter movement. And once sort of the conservative [00:05:50] folks in town got their hooks into that, like it was just, you know, then it was it was deemed political. And, you know, and the argument was, is that politics [00:06:00] didn't belong in a child's classroom.
Hannah McCarthy: [00:06:02] So in response to the piece lag and to this nod to the Black Lives Matter movement, there were requests to hang Blue Lives Matter flags [00:06:10] at the school, and the principal had the piece flags taken down and no other flags went up. And here again is that kid from the news clip a now a teenager. [00:06:20] Charlie.
Charlie: [00:06:21] It was an overnight thing. I remember asking why they were taken down, because I remember I had sat in the back of the room and the peace flag was right behind me. And, [00:06:30] um, it was just, it was weird having it be removed in one day. So I had asked my I'm pretty sure it was my science teacher who had it hung up. I asked, why'd you have it removed? And she said that the [00:06:40] principal had told them because of different parental complaints.
Lana: [00:06:43] It literally became you were either pro peace flag or pro blue Lives matter. Blue Lives Matter is one [00:06:50] thing. This this rainbow peace flag of inclusion. It's completely separate issues, right? But people were completely divided. And like I said, you were [00:07:00] one side or the other. And it, it did. It trickled down into school where like the kids were like the parents were arguing and then the kids were arguing. And it [00:07:10] literally to the. I would stand to argue that even to this day, we're still pretty much cut down the middle of wo, you know, five years ago, which is crazy to say five years ago you were pro [00:07:20] peace flag. So we can't talk now or we can't be friends because it's just it's so it was so polarizing. It was it was incredible.
Nick Capodice: [00:07:28] Okay, so you've got two viewpoints, [00:07:30] viewpoints that the community saw as oppositional to each other and a school taking down flags of one viewpoint and disallowing flags [00:07:40] of another viewpoint.
Hannah McCarthy: [00:07:41] And believe it or not, that did not fix what was going on behind the flags. There is always something behind a flag. There is a meaning, a message, [00:07:50] a movement. And especially recently in the U.S. at the public school, city and state level, there have been efforts to restrict which meanings, messages [00:08:00] and movements get a flag and which don't.
Nick Capodice: [00:08:03] Okay. So we're not talking about flag desecration laws. Right. Because we are actually allowed to desecrate the U.S. [00:08:10] flag. The Supreme Court said so in Texas v Johnson.
Hannah McCarthy: [00:08:13] Right. We are talking about what kinds of flags you are or are not allowed to fly school [00:08:20] flag restrictions exist well beyond Halifax, though. School policy is its own unique legal creature in so many ways because it is about a place [00:08:30] of learning. There are also, however, city, county and even state flag restrictions.
Nick Capodice: [00:08:38] Wait, is this a new thing? How [00:08:40] have I not heard of this before?
Hannah McCarthy: [00:08:42] Relatively. Yeah. This kind of restriction has happened over the past few years. So for example, Idaho. This [00:08:50] is an interesting case. First, the state legislature voted on flags in public schools. They prohibited anything that represented, quote, a political viewpoint, including but not [00:09:00] limited to flags or banners regarding a political party, race, sexual orientation, gender or political ideology, unquote. [00:09:10] And then they passed a law explicitly dictating what flags government entities are allowed to fly.
Nick Capodice: [00:09:18] Now, Hannah, I am wondering, is [00:09:20] that first law a viewpoint issue? I mean, it literally has the word viewpoint in it.
Hannah McCarthy: [00:09:26] Well, that is the question, isn't it? And the American Civil [00:09:30] Liberties Union, the ACLU has weighed in on flag restriction legislation pertaining to cities, states and schools in the U.S.. They say that policies banning openly [00:09:40] and explicitly the rainbow flag, and by that they mean the pride flag do constitute viewpoint discrimination.
Nick Capodice: [00:09:49] But this Idaho law [00:09:50] isn't explicitly banning the pride flag, even though it is effectively banning the pride flag both in schools and on government buildings.
Hannah McCarthy: [00:09:59] Nor [00:10:00] is the prohibition limited to the list it provides of what it considers political viewpoints. That said, Nick, the public school law does define [00:10:10] race, sexual orientation, and gender as political viewpoints, sandwiches them right between political party and political ideology. [00:10:20]
Nick Capodice: [00:10:20] Hannah, wouldn't you say that sandwiching race, sexual orientation and gender between politics is in the grand tradition of American sandwich making?
Hannah McCarthy: [00:10:30] Oh, [00:10:30] I certainly would. But are they political viewpoints? And if the law isn't limited to that list, what else could [00:10:40] be included? Is a flag that says, I love trees representing a political viewpoint. What about a flag that says, I love Jesus? [00:10:50]
Nick Capodice: [00:10:50] I mean, you start down that road, Hannah, and literally any opinion whatsoever could be considered a political viewpoint.
Hannah McCarthy: [00:10:57] And for that matter, if school districts, cities, counties [00:11:00] and states across the country already have policies dictating what kinds of political behavior their employees can and cannot engage in, [00:11:10] why would you need a law defining what political is and where it is not allowed?
Nick Capodice: [00:11:17] Do school districts, cities, counties, [00:11:20] and states across the country already have those policies?
Hannah McCarthy: [00:11:22] Oh, of course, you've got to find a way to balance a person's First Amendment rights with the need for government employees to remain neutral [00:11:30] and not coerced by politics. The policies vary, but their standard fare, in part because the Hatch Act, which was passed in 1939, limits [00:11:40] political activity for federal employees, and a lot of state employee jobs are funded by the federal government.
Nick Capodice: [00:11:48] So what counts as political activity in [00:11:50] these policies?
Hannah McCarthy: [00:11:51] These are laws and policies about running for office, campaigning for a candidate, raising money for a party cause, advocating for a [00:12:00] ballot or policy measure. A lot of the time, it has to do with what you're not allowed to do while on the clock.
Nick Capodice: [00:12:07] Okay, so a teacher hanging up their [00:12:10] favorite candidate's campaign flag in the classroom. That would probably be against policy.
Hannah McCarthy: [00:12:16] Right? In a state where a teacher is, for example, not allowed to campaign [00:12:20] for an office during instructional time or around their students. Idaho is one of those states, by the way.
Nick Capodice: [00:12:32] All [00:12:30] right, so you're asking why you'd need a clarifying law when politics and public employees are already pretty well covered?
Hannah McCarthy: [00:12:39] Well, [00:12:40] I guess you need it if you want to clarify what your state considers political.
Nick Capodice: [00:12:46] All right. Okay. But, Hannah, what is political [00:12:50] or what are politics? Because now you got me thinking, and I am not totally [00:13:00] sure how to answer that.
Hannah McCarthy: [00:13:01] Nick. I really did try to answer this. Like, I can tell you that the dictionary says it's quote of or relating to [00:13:10] government. There are legal and philosophical debates about what politics actually is or are, and for that matter, what government is, what public means, [00:13:20] what social means, what conflict means. I think we should go to law school, and also I do not have a good answer.
Nick Capodice: [00:13:26] Okay. Well, I also think we should go to law school, but I think we cannot afford [00:13:30] it and we do not have time. But that aside, I'm still trying to understand how and when the government is allowed to say not this viewpoint. [00:13:40]
Hannah McCarthy: [00:13:40] I do have an answer to that, and I'll give it to you after the break.
Nick Capodice: [00:14:01] We're [00:14:00] back. We are talking restrictions, viewpoints, politics and flags. And just before the break, Hannah, you said you actually had an answer about how [00:14:10] and when the government is allowed to say no to an opinion.
Hannah McCarthy: [00:14:13] Yeah. And I actually have a flag example and a Supreme Court case rolled into one to help us understand. [00:14:20]
Nick Capodice: [00:14:20] All right. Hit me.
Hannah McCarthy: [00:14:21] All right. Shurtleff v City of Boston. Boston has flagpoles outside of City Hall. Private citizens and groups could apply to fly a flag [00:14:30] on one of those flagpoles. A Christian organization applied to fly a Christian flag. The city said no. The Supreme Court said, not so fast, Boston. [00:14:40] You let other people in groups fly their flags? You do not personally select those flags or design those flags. This is a private [00:14:50] citizen matter. This is not government speech.
Nick Capodice: [00:14:53] Government speech. Is that an actual legal thing?
Hannah McCarthy: [00:14:57] It is. The government doesn't have [00:15:00] to pass a First Amendment test if it is speaking for itself. Now, the majority opinion also explained that deciding whether [00:15:10] something is government speech requires an holistic assessment, but that assessment includes questions like, is the public going to think this [00:15:20] is Boston speaking for itself or someone else speaking? And does Boston already have policies or internal guidance about what flags groups can fly? [00:15:30]
Nick Capodice: [00:15:30] So this complicates the matter, Hannah, because if these flag restriction laws we've been talking about are about government speech, then a First Amendment test [00:15:40] isn't required.
Hannah McCarthy: [00:15:41] Which, by the way, the ACLU also pointed out in its memo about flag restrictions. But, you know, if a city in Idaho has a history [00:15:50] of allowing the public to fly their own flags on government property, I think that could get tricky. That could be a shirt left question.
Nick Capodice: [00:15:58] All right. So let me ask this. [00:16:00] Getting back to this story in Halifax, getting back to the peace flag, did the state or the school district or the town have laws [00:16:10] or policies on the books dictating which kinds of flags could be flown?
Hannah McCarthy: [00:16:15] Well, okay, so Halifax now dictates that only the American flag [00:16:20] can be flown in municipal buildings, though that wasn't the case at the time. But schools are again, a different and unique thing. And when it comes to third party [00:16:30] flags in schools, that is up to the superintendent and the administration.
Nick Capodice: [00:16:35] All right, I guess that settles it. It's not a First Amendment question. [00:16:40]
Hannah McCarthy: [00:16:40] Well, you know, I personally do think it is a little Tinkery.
Nick Capodice: [00:16:47] So it is a Tinker story. [00:16:50]
Hannah McCarthy: [00:16:50] Well, let's go back to Lana and Charlie, the mother and son we heard from at the beginning of this episode. I asked Lana about district flag [00:17:00] policy, thinking that this peace flag issue might be up to the school district to decide.
Lana: [00:17:06] So Halifax is part of the Silver Lake School District. It's regional. [00:17:10] So it's Halifax, Plympton and Kingston. And for you know, so these flags were taken out of the classroom. Halifax has a very strict policy now that the [00:17:20] only flag that is allowed to be flown in any municipal building is the American flag. So there are no other flags allowed in any town building. However, I work at the high school now, [00:17:30] and there are peace flags all over the building, all over the building. So it's literally I and I can't speak to like the elementary school or the intermediate school in Kingston and Plympton. But like [00:17:40] so the kids are graduating, they go K through six in Halifax, and then they go to the middle school and there's peace flags everywhere there too. So it's almost like it was like a [00:17:50] it was a very mixed message.
Nick Capodice: [00:17:52] Hang on. The flag restriction only applied to Halifax Elementary.
Hannah McCarthy: [00:17:56] And the reason I say this is Tinkery is because [00:18:00] the major element of the Tinker v Des Moines opinion was, does this cause substantial disruption in the classroom? Those [00:18:10] black armbands kids talked about them during lunch. Kids were even hostile to each other outside of the classroom. But the court said they were not a disruption. [00:18:20] And in Halifax, the conversation inside and out of the classroom really picked up after [00:18:30] the flags came down.
Charlie: [00:18:32] You could definitely see that there was like a change in the classroom and in their like conversations because they were, [00:18:40] I don't know if they were explicitly told to keep politics away from the classroom. I assume they were, but, um, they tried to avoid the issue, but it [00:18:50] was inevitable to be brought up eventually. And, um, I feel like somebody at some point said something and it started a big chain reaction and everybody just started really talking about it. [00:19:00]
Nick Capodice: [00:19:00] So the effort to take what people saw as politics out of the classroom introduced a whole new world of conversation, maybe [00:19:10] even political conversation.
Charlie: [00:19:12] I think 100% it really it like it opened my eyes to like a new aspect of the world that I was previously unaware of, like [00:19:20] the aspect of politics and how people's ideas on different topics can differ. Um, I tend to not let that like determine my friendships and stuff because some of my friends are right [00:19:30] leaning, some of my friends are left leaning and I just get to see a broader spectrum of ideas. Um, and I feel like it like as soon as that happened, I started watching more of the news [00:19:40] and just like being more aware of like my situations, my surroundings and what's really going on in the world and just like paying attention and forming my own views on everything. [00:19:50]
Hannah McCarthy: [00:19:51] And Nick, here's the part of Tinker I think really applies here. Justice Abe Fortas wrote, quote, any word [00:20:00] spoken in class, in the lunchroom or on the campus that deviates from the views of another person may start an argument [00:20:10] or cause a disturbance. But our Constitution says we must take this risk. And our history says that it [00:20:20] is this sort of hazardous freedom, this kind of openness that is the basis of our national strength and of the independence and vigor [00:20:30] of Americans who grow up and live in this relatively permissive, often disputatious society.
Nick Capodice: [00:20:41] This [00:20:40] hazardous freedom something might cause an issue, but you have to give it the chance to.
Hannah McCarthy: [00:20:48] And I think actually in Halifax, [00:20:50] that peace flag, that symbol that some people saw as divisive, it got its chance. It revealed its own disputatious society. [00:21:00] And as far as strength goes, after it went away, a kind of union sprung up in its place.
Lana: [00:21:08] I think the peace [00:21:10] flag was, you know, a blessing and a curse because it did really reveal people's true colors. But within that, people who, [00:21:20] you know, sort of aligned with whatever the peace flag stood for and how, you know, just whether it's LGBTQ plus or Black [00:21:30] Lives Matter or anything We found sort of our community within the community.
Hannah McCarthy: [00:21:35] Or as our digital producer, Dana sees it.
Dana Cataldo: [00:21:38] And, you know, the more we talk [00:21:40] about this, the more I like come back to this like central theme of like, you know, the battles, like picking our battles because [00:21:50] almost like for the flag, for instance, you know, what would I rather have? Would I rather have a flag in a classroom? Or would I rather have these [00:22:00] events and this persistent organization that like makes people feel included in my hometown? I would love both, but I would really prefer the second one.
Nick Capodice: [00:22:14] So, [00:22:10] Hannah, it does make me wonder in these towns or cities or school districts [00:22:20] or states where laws and policies are stopping certain flags from being flown, is it a bridge too far to assume this has resulted in flags being taken [00:22:30] down?
Hannah McCarthy: [00:22:31] No, that is not a bridge too far. We may be Civics 101, but we don't have to be naive. Of course, flags have been taken down. And in the details [00:22:40] of bureaucracy, like in San Antonio, Texas, where states control the roadways. But cities control the sidewalks. People are walking on rainbows. In Saint Petersburg, in [00:22:50] Florida, where Governor Ron DeSantis ordered rainbow sidewalks painted over the city, installed rainbow bike racks. The city of Boise, Idaho, went so far as to [00:23:00] make the pride flag an official city flag to get around the restriction. That is, until the state legislature passed a law finding cities $2,000 [00:23:10] a day for defying their flag orders.
Nick Capodice: [00:23:12] Okay, but I do take your point. The government can legislate ideology and controversy, maybe even before [00:23:20] the controversy happens. But this country finds a way to stay relatively permissive.
Hannah McCarthy: [00:23:26] Okay, speaking of ideology and controversy. The [00:23:30] last thought I want to leave you with comes from Charlie, who seems to have discovered a secret option for living in a place where people [00:23:40] disagree.
Charlie: [00:23:41] I mean, I feel like I can attest to the fact that there's still definitely a divide. I can sense it within the school that like the different group of friends, [00:23:50] like there's definitely like the people that are definitely left leaning, but then there's also the people that associate themselves with the right and associate themselves with like right wing beliefs. But [00:24:00] I feel like the border is slowly being lowered between the two. And we don't necessarily have to reside within those ideologies. We can disagree [00:24:10] politically, but we can still get along and not be, like, harsh with one another day to day.
Hannah McCarthy: [00:24:40] This [00:24:40] episode was produced by me, Hannah McCarthy with Nick Capodice. Dana Cataldo is our digital producer. Thank you, Dana, for bringing us this story. And Rebecca Lavoie is our executive [00:24:50] producer. Music in this episode comes from Epidemic Sound. You can learn so much more about Tinker v Des Moines, about rights in schools, about the First Amendment, all at our website, civics101podcast.org [00:25:00] dot org. Civics 101 is a production of NHPR New Hampshire Public Radio.