County bans clothing with "disruptive or inflmmatory language or content" in County buildings

Robert Sheridan rs at
Mon Dec 1 17:13:08 PST 2008

Does the ban in Greene County, Missouri, include the wearing of the  
Confederate Flag?  Would that be inflammatory to some people in  

Do we have a name, in Conlaw, for this form of reasoning, this useful  
tool, by which when evaluating a ban on Expression X we ask whether it  
applies as well to Expression Y, which some people might find that  
they don't want to ban, or is otherwise protected?  The trick is to  
come up with an interesting and cogent Expression Y.  Scalia is good  
at this.  I think we speak of it in terms of overbreadth, and  
sometimes underbreadth, as well as in due process terms such as  
vagueness as to whether the ordinance provides the requisite notice to  
someone who might want to comply or otherwise avoid arrest by an  
expansive or overzealous thought-cop.  Disruptive or inflammatory as  
to whom?  Who are these privileged few who are entitled to tell me  
what not to think and say?  I'd like to join.

If all expression is incitement, it might just as well be deemed to be  
disruptive or inflammatory.

Clearly a ban on provocative (or inflammatory) expression alone must  
be bad on its face when issued by government as government.   
Different, however, when government acts as building administrator  
intent on keeping the windows unbroken, I assume.  Then rules of  
decorum must prevail, except in museums, of course, as we've seen.   
Context counts for most, if not all, in these discussions.

Shouldn't we have a dedicated term to conjure up this form of  
reasoning, if we don't already and I just can't think of it?  Maybe  
it's simply "protected speech," but I'd like something more colorful  
than that, as good as it is, since it is the bottom line.  I'm casting  
about for a more colorful term to describe the process of casting  
about to find other examples of protected speech than the one in  
question.  Maybe "the Casting About to Find Protected Examples  
Doctrine," or the Casting Process, for short.  Once you've found it,  
Bingo! you win.  The Bingo process. :)


Here's an item from today's NYT on a Confederate Flag ring advertised  
in American Heritage Magazine which has created some controversy:

The New York Times
Printer Friendly Format Sponsored By

December 1, 2008
In History Magazine, North and South Clash Again

American Heritage, the history magazine recently revived under new  
ownership, is gamely plowing ahead under the old-media dynamic —  
trying to combine editorial content with print advertising. Its  
current issue shows how stirring that mix can be.

Currently on newsstands is the magazine’s special Lincoln issue,  
focused on the 16th president. The Illinois Bureau of Tourism bought  
the back-page ad, depicting Lincoln with the caption, “Walk the same  
halls and streets that led him to the White House.”

On the flip side of that page, however, is an ad for a commemorative  
Civil War ring emblazoned with the Confederate Flag.

“It’s a little uncomfortable,” Edwin S. Grosvenor, the magazine’s  
editor in chief, said in a telephone interview.

Mr. Grosvenor said he became aware of the advertisement, placed by the  
Bradford Exchange collectibles company, just before the magazine’s  
deadline and that he had to walk a fine line between generating  
revenue and maintaining editorial tone.

But one of the contributors to the magazine, the historian James M.  
McPherson, said that the line had been crossed.

Mr. McPherson, a history professor at Princeton and author of “Tried  
by War: Abraham Lincoln as Commander in Chief,” said that many saw the  
Confederate flag as an incendiary symbol of slavery and that he would  
have protested the ad had he been aware of it before publication.

Eric Foner, a Columbia University professor and fellow essayist in the  
Lincoln issue, said he thought that the ad was more incongruous than  
illicit. “The Confederate flag is insulting to a great number of  
Americans, not just African-Americans, but it is legal,” he said.

A spokesman for the Bradford Exchange said the company had no idea of  
the issue’s content. “We offer this product because it appeals to some  
military history buffs,” he said.

Mr. Grosvenor said only one letter from a reader had arrived, so far.  


On Dec 1, 2008, at 1:34 PM, Volokh, Eugene wrote:

>     Greene County, Missouri is banning "all individuals" from  
> "wearing clothing, apparel, or other accessories containing  
> disruptive or inflmmatory language or content" in County buildings.   
> Constitutionally permissible regulation in a nonpublic forum, or  
> unconstitutionally viewpoint-based or vague?
>     Eugene
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