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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