Harvard Law Professor Analyzes Hingham Firefighters’ Refusal To Remove So-Called ‘Thin Blue Line’ Flags From Trucks – wgbh.org

Firefighters in Hingham, Mass., are continuing to display a version of the American flag black and white with a blue stripe on their fire trucks. The firefighters say it's there to show support for the police, but their bosses say it's an inappropriate political statement and it has to come down. All Things Considered host Arun Rath spoke with Noah Feldman, a professor of law at Harvard Law School, on Wednesday about the controversy. This transcript has been edited for clarity.

Arun Rath: And first, to give people some background, because in case you're not familiar, this flag that has the blue stripe in it, the supporters say that it's supposed to show support for the police. Right now in our current context, its also come up as is being shown in opposition to Black Lives Matter and that movement. And there were apparently some complaints from some citizens in Hingham along those lines. It sounds like it might be established law, but give us the foundation here.

First, do employers have the right to limit these kind of political displays in the workplace? And does it make a difference if we're talking about a private business or, say, the firefighters?

Noah Feldman: Well, first of all, it can make a difference. Certainly, a private employer can decide what flag will be displayed in the workplace. But that's because a private employer is also not governed by the First Amendment of the Constitution.

Government is a different matter. Government is governed by the First Amendment, and government can't limit citizens' free speech. So that's why this becomes sort of interesting and even a little bit complicated from a constitutional perspective.

The thing to keep in mind here is that if private citizens who were serving the government wanted to speak on their own, they would have some capacity to do so without being told what to say by the government. But because in this case, the flags that they're flying are on firetrucks, which are government property, it's almost certainly the case under existing law that if the town's executive say you have to take the flags down, that they are obligated to take the flags down.

Rath: And is there precedent in case law that supports that from the past?

Feldman: In general, the precedent here is a principle called government speech. The government is entitled, when it's speaking through its official channels, to say whatever it wants. It can express any point of view that it chooses. It can promote a view. It can argue against a view. The government can run public service announcements telling you to go out to vote. The government can have a holiday called Columbus Day, which some people don't like because, you know, [what was] originally intended to say nice things about Italian Americans is now construed by some to be, you know, papering over of a history of invasion and imperialism and even genocide. But the government is still entitled to do it.

And similarly, the government can decide what messages will or won't be conveyed on its property, including its firetrucks. So that's the general principle here.

Rath: And is there total clarity when it comes to saying what counts as political speech? It may be clear in a case like this, but are there other displays that would be considered nonpolitical and therefore, OK?

Feldman: Well, here it does get a little bit trickier because, you know, if the town of Hingham suddenly wanted to fly flags from its firetruck saying 'Vote Democrat' or 'Vote Republican,' it could be the case that it would be crossing a line that's very well established in American politics namely, that local governments and the federal government are not supposed to themselves express preferences that are partisan political. So that that would be a circumstance which might be relevant.

But broadly speaking, there isn't, other than a town policy here, a general constitutional principle that says that a town or a city couldn't say something that was political in its own right. So, you know, having Columbus Day is political. The state of Massachusetts does it. And that's OK. So what's going on here is that in Hingham, the town says it has a policy of not allowing political speech. But it doesn't have to have that policy to be able to choose what flag it flies.

Arun: Well, I was going to ask about that, because we've seen it in other areas where local governments are actually endorsing, even promoting political speech I think of New York City, where the city painted Black Lives Matter in front of Trump Tower. But that's OK because that's their policy?

Feldman: Exactly. That's their policy. And that's what they want to express.

Now, what Hingham says is that they have a written policy that says no political speech. And I suppose if the firefighters wanted to go to court and challenge an order for them to take down the flags, what their best argument would be would be to say, 'Well, you say that this is a political policy, a policy of no political speech. But this isn't political speech.' And then ask the court to determine the meaning of Hinghams policies. That would be different from a constitutional argument. It would just be saying, 'Hey, we don't think you're applying your own policy correctly.'

Rath: And where could this potentially go legally from here? Could the firefighters union challenge this policy?

Feldman: You know, I suppose they could. The firefighters don't have an individual right to fly any flags that they want from the firetrucks. And so far as I can tell, at least in the news stories that I've read, they haven't asserted that they have such a right. On the other hand, they have said, 'Well, gee, none of us have found it in our hearts to take down the flag.' So they're engaged right now in a kind of, I would say, gentle civil disobedience with respect to these flags.

If they were really pushed, I suppose they could go to court and ask the court to say that the town was not correctly enforcing its own policy. I think a court would be pretty skeptical of that because in general, courts like to be deferential to government officials who are reasonably enforcing their own policy. And I think they probably would say that a flag with a message is almost inherently something political and therefore up to the town to determine whether or not they can fly or not.

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Harvard Law Professor Analyzes Hingham Firefighters' Refusal To Remove So-Called 'Thin Blue Line' Flags From Trucks - wgbh.org