Legislative Memo: Display of the American Flag

This bill would impose civil liability upon public or private employers that discriminate against an employee for displaying the American flag on his or her person or work station. The sponsor’s memorandum notes that in response to the attack on the World Trade Center and with the country now engaged in a “war on terrorism,” a “renewed patriotic spirit can be seen” in the ubiquitous display of the American flag.

The memorandum further states that persons who are “proud of their country” and who express such pride by wearing or displaying an American flag should not be subject to discrimination. However well-intentioned, this proposal would involve the New York State Legislature in regulating private expression based upon the content of that expression. This is a questionable undertaking both on grounds of public policy and constitutional law.

It is well established that the First Amendment prohibits government regulation of speech or expression based on hostility – or favoritism – toward the underlying message expressed. R.A.V. v. St. Paul, 505 U.S. 377, 386 (1992); see also Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Board, 502 U.S. 105 (1991) (Content-based regulations are presumptively invalid.).

By providing special status to private expression of a particular viewpoint – in this instance, patriotism as expressed in the symbol of the American flag – the state has now created a class of privileged speech. And in doing so, the state itself would now engage in a form of discrimination by selecting which expression is afforded – or not afforded – protection.

We believe that as a practical matter this bill will involve the state in the very conduct it would seek to avoid – viewpoint discrimination – and for this reason, we urge the legislature not to advance this legislation.