“Let’s make the Confederate flag a hate crime: It is the American swastika and we should recoil from it in horror.”
So opines Nick Bromell, a professor of American Studies at the University of Massachusetts, Amherst. In the wake of a purge that has seen the Confederate battle flag vanish from stores and disappear from the grounds of South Carolina’s capitol building, Bromell says in Salon that America should be going much, much further.
“Americans who refuse to acknowledge the connection between the Confederate flag and the horrors of slavery and white supremacy are still in the grip of a ‘malignant spirit’ handed down from generation to generation from 1865 to this day,” writes Bromell. “It is a fine thing that the Confederate flag will no longer fly above the South Carolina state capitol. But displaying the Confederate flag anywhere is, at bottom, an act of hate. It should be recognized as such, and punished as a hate crime.”
Bromell defends his call by citing the words of escaped slave and abolitionist Frederick Douglass, who lamented in 1871 that “covert, insidious, [and] secret” hatred continued to exist in the United States and was far harder to defeat than the military rebellion of the South in the Civil War. This lamentation on hatred, Bromell says, makes him feel “confident” that Douglass would agree with him on banning the flag.
Historical context offers some reason to doubt Bromell, though, because in addition to opposing slavery Douglass was also a fierce defender of free speech as one of America’s premier rights.
“No right was deemed by the fathers of the Government more sacred than the right of speech,” Douglass wrote in 1860. “Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist. That, of all rights, is the dread of tyrants. It is the right which they first of all strike down. They know its power. Thrones, dominions, principalities, and powers, founded in injustice and wrong, are sure to tremble, if men are allowed to reason of righteousness, temperance, and of a judgment to come in their presence.”
Nevertheless, Bromell says the Confederate flag is too horrible to enjoy the free speech protection Douglass was so fond of.
“Given the millions who suffered under the whip of slave masters, and all the families separated as slave traders sold sons and daughters away from their parents, and wives away from their husbands, All Americans should recoil from the Confederate flag with the same horror we feel for the Nazi swastika.”
The comparison is an interesting one, because it is completely legal to display the Nazi swastika in the United States, even for hateful purposes. The Supreme Court has repeatedly affirmed that free speech of an ideological nature may only be suppressed when it deliberately and imminently incites violence. Even burning the American flag, burning a cross on a person’s lawn, and having a Nazi march past the homes of Holocaust survivors are all legal and protected by the Constitution.
Despite being a professor of American studies, Bromell does not address the First Amendment concerns that may be raised against his proposal to criminalize speech.
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