It was a typical day when the Associated Students-UCI Legislative Council gathered for their biweekly meeting as they always do, on Tuesdays and Thursdays.
At that meeting, a motion was passed to ban all flags from the Associated Students lobby. The motion was made because representatives noticed some students said that having the American flag hung in the lobby was not inclusive to international and multi-cultural students and can be seen as a symbol of colonialism and oppression.
A motion was made to ban all flags from the Associated Students lobby to create an inclusive space for everyone. Although some representatives had reservations that the ban may infringe on students’ rights, the ban ultimately passed 6-4 (with 2 abstentions).
The motion simply bans flags from being hung in the Associated Students’ lobby. It does not stop students from wearing or carrying the flag in the lobby or elsewhere.
So the real question is whether this is an issue of free speech, or just a matter of the student government going too far in its quest for inclusivity?
“I think this legislation is made with the best intentions in mind, but freedom of speech cannot deny the freedom of speech to others. I cannot support such a legislation,” said Tin Hong, a representative for Cal State Fullerton’s College of Engineering and Computer Science.
Let’s say the flag ban is a first amendment issue when it comes to speech and expression, the First Amendment states that, “Congress shall make no law … abridging the freedom of speech … ”
The government cannot tell the people what to say and what not to say, within reason of course. Here, the ASUCI Legislative body plays the role of Congress and the UCI students the role of the people. Banning the flag would be potentially infringing on a form of speech called symbolic speech.
In 1968, the Supreme Court set a precedent for dealing with symbolic speech in the case United States v. O’Brien. They established a test to determine when the government had a right to ban speech.
The test encompasses four rules: It must be within the constitutional power of the government to enact, it must further a substantial government interest, the interest must be content neutral and it must prohibit no more speech than is essential to further that interest.
If this is an issue of free speech, the ASUCI legislative council does not pass the O’Brien test. Though they have a “substantial government interest” by banning the flag to create an inclusive space for all students, their ban is not content neutral because they are banning the flag precisely because of what it might symbolize.
Emily Erickson Ph.D, a professor of media law at Cal State Fullerton, said this might not be a first amendment issue. Erickson refers to an established government speech doctrine which allows the government to speak for itself without any restrictions.
In Wooley v. Maynard (1977), where the doctrine is implied, the Supreme Court ruled that though the government can’t compel anyone to say or believe anything, the government can speak for itself as long as it isn’t restricting the rights of others even if they have opposing viewpoints.
The flag ban is just a case of the student government over-reaching in trying to create an inclusive environment.
ASUCI was not trying to restrict speech, however, it ended up doing just that.
It was only making a statement standing for the inclusivity of all the students it represents, which is a commendable thing to do. However, by banning all flags in a public space, it defeated its goal and excluded everyone.