Is­lamic State flag sparks free speech de­bated in times of ter­ror

The Washington Times Weekly - - National - BY ALEX SWOYER

When a New Hampshire po­lice chief pulled a home­made Is­lamic State flag from a wall at a dam this month, it spurred a host of ques­tions about First Amend­ment rights in the era of ter­ror­ism.

Pitts­field Po­lice Chief Jef­frey Cain said the black-and-white flag was caus­ing alarm in the com­mu­nity. Chief Cain said he worked with the FBI on the mat­ter but de­cided there was no crime in post­ing the flag and there was no ev­i­dence of a ter­ror­ist plot.

“No crim­i­nal charges are forth­com­ing,” he told The Washington Times.

Whether the chief was within his rights to pull down the flag, how­ever, has be­come a thorny le­gal ques­tion.

Le­gal an­a­lysts be­lieve it’s the first time an Is­lamic State flag has ap­peared on pub­lic land in the U.S.

Gilles Bis­son­nette, le­gal di­rec­tor at the Amer­i­can Civil Lib­er­ties Union of New Hampshire, said the key ques­tion is whether the dam is con­sid­ered a “fo­rum” where the gov­ern­ment has per­mit­ted speech. If it has, then re­mov­ing the flag could vi­o­late the First Amend­ment.

“If a fo­rum is opened up to speech, the gov­ern­ment can­not al­low some speech and pro­hibit other speech solely based on the speech’s view­point,” said Mr. Bis­son­nette.

John Gre­abe, a law pro­fes­sor at the Univer­sity of New Hampshire, said it would be a prob­lem if Amer­i­can flags are be­ing hung on the dam but only the Is­lamic State flag has been re­moved.

But he be­lieves the dam fence hasn’t his­tor­i­cally been used as a pub­lic fo­rum, so there wouldn’t be a prob­lem with Chief Cain’s re­moval of the flag.

“It would be akin to scrub­bing a graf­fiti swastika off the side of a pub­lic build­ing — an act that would be per­fectly OK,” said Mr. Gre­abe. “Where things be­come trick­ier is if he then al­lowed the Amer­i­can flags that were put up in re­sponse [and in the same lo­ca­tion or nearby lo­ca­tions] to re­main in place.”

In­deed, that ap­pears to have hap­pened late last week when an Amer­i­can flag was hung at the site.

Mr. Gre­abe said that in places rec­og­nized as pub­lic fo­rums, such as street cor­ners, al­most ev­ery­thing would be tol­er­ated short of in­cit­ing vi­o­lence or mak­ing spe­cific threats. The law pro­fes­sor said he was sur­prised that the po­lice chief had talked about in­ves­ti­gat­ing the flag.

“What was done there was not il­le­gal,” the pro­fes­sor said.

Mr. Gre­abe com­pared it to hang­ing a Con­fed­er­ate flag, rea­son­ing that the gov­ern­ment can’t pun­ish peo­ple for view­points that oth­ers find ab­hor­rent.

But John Cardillo, a for­mer of­fi­cer with the New York Po­lice De­part­ment, said the dis­play of an Is­lamic State flag is not the same as fly­ing a Con­fed­er­ate flag.

“We don’t have cur­rent ac­tion­able in­tel­li­gence that Civil War re-en­ac­tors want to at­tack crit­i­cal in­fra­struc­ture points to dis­able the United States,” said Mr. Cardillo.

He said it’s naive to look at this in­ci­dent only through the lens of the First Amend­ment. Be­cause the flag was placed on the dam, which is con­sid­ered crit­i­cal in­fra­struc­ture, it should be thor­oughly in­ves­ti­gated by the FBI, Mr. Cardillo said.

Civil rights lawyer Nit­sana Dar­shanLeit­ner is su­ing so­cial me­dia com­pa­nies for dis­play­ing ter­ror­ism-re­lated videos that she says en­cour­age view­ers to join groups and com­mit attacks. She said the na­tional se­cu­rity value must gov­ern speech when danger is present, but there should be a bal­ance.

“You can in­deed hang a flag of a des­ig­nated ter­ror or­ga­ni­za­tion, but you can­not go and en­cour­age some­one to go and take an act,” she said. “Hang­ing a flag does not cre­ate im­mi­nent … danger.”

While an­a­lysts couldn’t re­call an­other in­ci­dent of an Is­lamic State flag be­ing flown on pub­lic lands, a New Jersey man hung one out­side his house in Gar­wood in 2014. The man said he was a Mus­lim and wasn’t aware that the flag was linked to the Is­lamic State, which is re­spon­si­ble for ter­ror­ist attacks world­wide.

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