Tuesday, November 21, 2006

More Free Speech Case

US town bars foreign flags in swipe at immigrants

Thu Nov 16, 3:37 PM ET

PHOENIX (Reuters) - A Nevada town passed a law this week making it illegal to fly a foreign nation's flag by itself, the latest swipe by a U.S. community at illegal immigrants.

The town council of Pahrump, which lies in the Mojave Desert west of Las Vegas, voted 3-2 on Tuesday to make flying any foreign flag above the U.S. flag or alone anoffense punishable by a $50 fine and 30 hours' community service.

The meeting also pushed through measures to deny services to illegal immigrants and make English the official language in Pahrump, a commuter town of 40,000 residents some 60 miles (97 km) west of Las Vegas.

Supporters said they passed the measure to hit back at Hispanic demonstrators who carried Mexican flags when they marched in U.S. cities earlier this year to press for rights for 10 million to 12 million illegal immigrants living in the shadows.

"All of the illegal alien protesters are waving Mexican flags, and we just got tired of it," town board clerk Paul Willis told Reuters in a telephone interview.

"This is the United States, and the Stars and Stripes should fly supreme," he added.

Hispanic groups slammed the flag ordinance as a blow to first-amendment rights to free speech but thought it unlikely that the community would enforce it.

"It is clearly unconstitutional, but given that Pahrump that is such a small town, I don't think they are going to be hiring any flag police any time soon." said John Trasvina, the president and general counsel of the Mexican American Legal Defense and Educational Fund.

In passing the bylaw, the town joined several other communities from California to Pennsylvania that have passed laws curbing illegal immigrants in recent months.

Among them are Escondido, in southern California, and Hazleton in Pennsylvania, where councilors barred landlords from renting to undocumented aliens and denied them access to services.

In Texas, where a third of the citizens are Hispanic, the Dallas suburb of Farmers Branch this week enacted laws fining landlords who rent to illegal immigrants and making English the official language.

Texas lawmakers preparing for the next legislative session in January filed bills this week to block state assistance to illegal immigrants and their children and to tax money transfers to Mexico, according to the bills.

One of the nice things about Constitutional Law in Singapore is how simple it is to predict how cases will turn out in Free Speech cases. And in our Constitution is a very explicit clause that defers to Parliament in terms of what constitutes "necessary or expident". Factor that to the presumption of constitutionality (i.e. the challenger has the onus of proving it is unconstitutional) and the government really has a remarkably low burden to shoulder.

It's a little harder to determine it under the US Constitution but the Court is at least on matters of speech/expressive conduct to be fairly clear.

Firstly, this is the suppression of what appears to be at a minimum, to be expressive conduct i.e. conduct that portrays a particularized message that an objective viewer would in the circumstances understand what it means per US v O'Brien. And what makes it even easier is that the town is specifically banning expressive conduct!

I would suppose that if this case came to court, the best (and arguably only) defense the town has is to somehow finesse this as a Time, Place and Manner regulation per the Ward line of cases. That is a regulation that does not prohibit speech so much as channeling it e.g. no protesting in the middle of the road and thereby obstructing traffic without a permit. Or decibel level control at particular times. These are content neutral regulations that would not discriminate amongst viewpoints.

But it is so obviously not facially content neutral, much less on its asserted governmental interest, since the town came right out to say they were regulating on a content discriminatory basis. Thus the court would have to apply strict scrutiny i.e. compelling state interest, and narrow tailoring of the regulation to the state interest such that it really is the least restrict alternative.

If so, unless the court makes a u-turn on the entire flag burning cases e.g. Texas v Johnson and accepts the primacy of the flag as a compelling state interest (they don't in case it wasn't obvious enough and in fact point out that's what makes it so potent as speech), I don’t see how it would survive a challenge.

Furthermore, unlike the flag burning cases, it is not a direct assault on the US flag here.

And just to rub it in, I would not think it would survive on a substantial overbreadth analysis either, Broadwick v Oklahoma. By substantial overbreadth I mean that the regulation would sweep in way too much protected speech as it is (you could put up the flag not simply to support immigration reform).

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