One of the prevalent First Amendment memes about the Confederate flag controversy compares the flying of that flag in public to unjustly yelling "fire" in a theater (see Brandenburg v. Ohio, 1969 for further illumination of this long-standing legal theory). Some of those who seek to have the flag demasted, unplated, and outlawed suggest that the mere presence of the Confederate flag in public places is tantamount to calling up the hoary images of slavery, rebellion, and armed insurrection. Such flag-borne inferences of inhumanity and violence discomfit many people who presume the worst message is on the lips (or in the minds) of every Confederate-flag waver, causing a thus-uneasy society to react viscerally when a catalyst of murder is suddenly applied as it was in Charleston last week.
Other critics, rightfully assuming that few Confederate flag owners seek the re-institution of slavery, secession, or civil war, are simply uncomfortable with a reminder of a bygone era that rent America in two and cast the nation into more than 100 years of social, political, economic, and intellectual turmoil. We have not yet emerged from that century-old turmoil, and to suggest that we can now move forward by just banning a flag is to miss the whole argument for its removal.
Let me say it here: I am disquieted by the presence of the Confederate flag. Though my father's line of our family has more than 300 years of history in North Carolina and Tennessee, and at least one of our clan fought under the Confederate flag, I have no desire to own, display, or fly that flag because it is not emblematic of a history of which I am proud. But I can only speak for myself; and that is where the argument for or against taking down the Confederate flag lies.
When the English philosopher John Stuart Mill wrote On Liberty in 1859, he spoke to the notion of the tyranny of the majority controlling the liberty of the citizens. He said:
That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant... Over himself, over his body and mind, the individual is sovereign.
Mill's foundation for that theory is well-established in Constitutional law and, indeed, was memorialized in many of the early colonial constitutions. The sovereignty of individual thought fueled the very movement of Protestants away from England in the 17th century, and that movement from tyranny to intellectual and religious freedom was echoed over and over as immigrants arrived on America's shores from tyranny-shredded homelands.
Americans treasure our individuality, and we hold tenaciously to the idea that what happens inside the case of our brains is sacrosanct. We can think what we want; no American institution can attempt to suppress our ideas. We can express those thoughts freely, e.g., in the spoken word, through art, and in our literature. We can even act on those thoughts if -- and here is the rub -- those actions bring no harm to others. Over ourselves, though, our bodies and minds are sovereign.
Here is where it gets tricky. In Mill's treatise, he developed the idea of a marketplace of ideas not unlike an economic marketplace, where, instead of the price of a product being determined by the public's willingness to pay, the influence of an individual's ideas on society is determined by society's willingness to accept those ideas. This was made clear in Federalist #10:
If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution
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In short, as much as you are entitled to your own thoughts -- and as much as you are entitled to express those thoughts -- if those ideas are not perceived by the majority of society to be in the public's interest, they can and probably will be rejected -- the tyranny of the majority. Mill went on to suggest that even if the individual can make a case to the government for the righteousness of the idea, and the government agrees and passes a law in support of the idea, the public marketplace of ideas can bring that law down.
So where does that leave the Confederate flag owners who wish to fly the flag? It means they can still fly it in their front yard; display it on their living room wall, write about their love for it, compose songs about it, and display it on their cars (just not on a publically-financed license plate). But in the marketplace of ideas, the majority is speaking clearly: the time has come to turn away from the ideas of old and clear the courthouse and statehouse lawns and other public places of a discredited icon of oppression, hate and rebellion. The old song no longer stands: Do not look away, Dixieland; it is time to turn away.