LA School Violating First Amendment to Placate Koreans
To Destroy Mural Because Some See Japanese Imagery Behind Ava Gardner
While many doubt the alleged resemblance - and there are striking differences between the flag and what is shown on the mural - there is no doubt that this expensive mural is going to be destroyed because of the image it allegedly depicts and message some people claims its sends.
But, notes public interest law professor John Banzhaf, any such action would almost certainly violate the rights such artistic works, and those who wish to view them, enjoy under the First Amendment's freedom of speech and expression.
Having once chosen to have the mural created, no state or local governmental body can suddenly decide to suppress this form of free speech based upon its content and message unless there is a compelling governmental interest being served, and the remedy is the least restrictive alternative available, says Banzhaf. Neither is true here, he maintains.
Time and time again the Supreme Court has held that even the most inflammatory and objectionable images - including the Nazi swastika and a flaming cross - cannot be suppressed because of the images they portray and the messages they may send.
So even if the mural did depict a Japanese flag - which many observers as well as the artist strongly deny - forcing it to be painted over simply because the message may be offensive would violate the Constitution, and open the school district and various administrators to a law suit and to legal liability, says Banzhaf.
The unconstitutionality of the suppression becomes even stronger because, as everyone agrees, the mural does not in fact depict the Japanese flag, and there are many distinct differences between the flag and the rays shown emanating from behind Ava Gardner, argues Banzhaf.
Whether the ACLU or anyone else will actually bring a law suit is unclear, but one is certainly warranted because the District cowardly yielded to what is known as a "hecklers' veto" - suppressing protected speech because one group does not want others to be able to experience it - suggests Banzhaf
Although Banzhaf has nothing to do with this mural, he did successfully defend a student at George Washington University who was suspended and then almost expelled for briefly posting an ancient religious symbol which another student mistook for a Nazi swastika.
As many then pointed out, this would have been clearly illegal, and made as much sense as banning a display of the Jewish six-pointed star because some might mistake it for the five-pointed pentagram and its association with devil worship.
As part of the student's defense, Banzhaf demonstrated that, under constitutional law, even the display of an actual Nazi swastika - much less of another symbol which might look something like it - would be protected by free speech and academic freedom guarantees.
So in this situation, regardless of the artist's intent and/or the perceptions of some who oppose the mural, even the display of an actual Japanese battle flag on a mural would be protected by the Constitution, and the protection for a painting which only vaguely resembles such a flag would be even broader, he suggests.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418