Even a strict constructionist would find fault with the original statement.

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>In a message dated 01-09-25 10:31:18 EDT, Eugene Dillenburg wrote:
>
><< The First Amendment to the Constitution of the United States applies only
>to the
> federal government, and not to private citizens, organizations, or
>institutions.  >>
>
>I waited to see if someone else would respond to this, but since it hasn't
>appeared, I'll risk it--and risk any annoyance at my reviving this issue.  At
>first I was confused about the point being made.  What?  The federal
>government has had its freedom of expression infringed? :-)  But probably
>what was intended was the observation that the First Amendment clearly states
>that "Congress shall make no law.." abridging free speech, etc., and says
>nothing about other entities abridging free speech.  If that's what was
>meant--a strict constructionist reading--fair enough.  However, a quick
>perusal of a few Web sites reveals plenty of case law, precedent, and court
>interpretation of the First Amendment which assumes that the prohibition
>against Congress passing laws restricting free speech and expression also
>extends to other governing bodies, administrators, and employers.
>(Technically, I guess it's the First Amendment combined with the Fourteenth
>Amendment, which seems to be broadly interpreted as suggesting that no one
>can suppress free speech.)  Nevertheless, many disputes over freedom of
>expression are characterized, rightly or wrongly, as First Amendment cases,
>even though the federal government is not directly involved.
>
>And plaintiffs do win such cases.  I'm sure you've read about situations in
>which employees have won the right to retain special garments or hair styles
>for religious reasons, against employer's directives, for example.  There are
>many censorship cases, such as a plethora of actions in the 1970s and 1980s
>brought by college newspapers against administrators' attempts to control
>editorial content, in which courts held that First Amendment rights were
>violated.
>
>Matthew White is right that employers can enforce certain codes of conduct,
>dress, etc., for the sake of uniformity, professionalism, or to produce a
>corporate image.  But courts have opposed, as First Amendment violations,
>rules which were deemed to interfere with an employee's reasonable right of
>self-expression.  Perhaps in a somewhat rigid workplace atmosphere, such as
>one in which staff wear prescribed uniforms, the employer can decree that
>religious, political, or patriotic symbols cannot be worn in conjunction with
>the uniform, etc.  Government employees know they can't display partisan
>political buttons and statements because of the Hatch Act, and (usually)
>don't consider that a violation of their rights.  But I doubt that in a
>typical office situation an employer could succeed in prohibiting small flags
>on desks, if challenged in court.  (These would be civil suits, of course,
>not criminal cases.)   In fact, I've noticed that already a number of
>post-Sept. 11 flag cases, similar to the dispute which started this thread,
>have been filed as First Amendment cases.
>
>Even though the amendment technically just prohibits Congress from passing
>laws restricting freedom of expression, jurists have interpreted the
>amendment (in combination with the Fourteenth) as creating a spirit of rights
>which other organizations are not permitted to violate either, unless they
>can demonstrate a compelling reason that their needs supersede the
>individual's rights.  Offhand, I don't recall a case in which the federal
>government itself was purported to be in violation of the First Amendment (no
>doubt someone will remind me): it was usually some other entity.  Of course,
>there is always debate about what kinds of actions constitute "speech", and
>the written or spoken word is easier to defend as protected "expression" than
>non-standard dress, adornment, office decor, etc.  In this particular case, I
>don't see why the staff of the institution couldn't bring a "First Amendment"
>suit against their over-zealous director.  The arguments, I would expect,
>would concern whether the display of the flags constituted protected "speech"
>in the first place, whether the director had a right to regulate the display
>of flags as a normal exercise of management, whether she was right that the
>display could be interpreted as threatening to ethnic minorities (the
>equivalent of the proverbial yelling "Fire" in a crowded theater), and
>whether there is any essential difference between staff displaying personal
>flags and organizations showing them on their outdoor flagpoles.
>
>Having said that, I still think prohibitions by employers and administrators
>against patriotic expression by displaying your country's flag verge on
>silliness, if not actual First Amendment violations.  I can't imagine living
>in another country as an immigrant, guest worker, or tourist and being
>frightened or offended by patriotic displays of that country's flag, even if
>I thought most of the natives were hostile to my own country.  If I thought
>people were hiding their flags from me out of consideration for my tender
>feelings, I'd be laughing out loud.  Despite the very real racial violence
>which occurred after Sept. 11, and the fact that some minorities are
>justifiably fearful and on their guard, I think it's not justified to assume
>that all flag-waving in itself constitutes a threat.  Does anyone know of any
>follow-up to the particular incident that started the "patriotic?"
discussion?
>
>David Haberstich
>
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