In their response to the utterly premediated and brutal murder of nine African-Americans at prayer in Charleston, South Carolina gun lobby spokesmen repeated the formulaic mantra that the best way to avoid such catastrophes is not to restrict homicidal racists’ legal right to bear arms, but to ensure that their victims have unrestricted access to guns also: the Emmanuel Episcopal Church, after all, had the temerity to ban guns amongst the congregation. The massacre of the nine Christians in Charleston will not, I fear, serve as the catalyst for establishing some form of sanity within US gun culture and the constitutional protection it enjoys. It has, however, provoked a surprising and potentially highly significant campaign, which is singling out the confederate flag as a symbol of racism and hatred. People from across different political, racial and social groupings are openly calling upon the removal of the flag from various public sites; from outside the state capitol building of South Carolina to car registration plates across several Southern states. Items bearing the flag’s distinctive image have even been removed from the shelves of large retailers. The confederate flag is being culturally and politically re-branded. Not everyone thinks that this is a good thing. Some even argue that the campaign to render the flag socially and culturally taboo amounts to a violation of their rights.
By Dr. Andrew Fagan, University of Essex.
The First Amendment of the US Constitution effectively upholds the right to exhibit the flag in private, domestic settings. It also offers the flag substantial protection in many public settings. Free speech protection provides a secure legal ground for those who defend the flag. However, the emotional attachment to the flag really draws its power from a desire to uphold a particular form of cultural identity: to enable a particular constituency of Southerners to continue expressing their identity and upholding their heritage. Across the world, many communities of people cherish their flags as the most visible and immediate signifiers of an asserted shared identity. The ostensive claim to a right to one’s cultural identity has received legal recognition through an ever-expanding body of international human rights law. International human rights bodies have come to see that concerted attacks upon peoples’ most cherished symbols amount to a form of human rights violation in themselves and are often a precursor to even worse violations such as ethnic cleansing and genocide. No small part of the desire for some to defend the confederate flag draws upon a desire to protect a shared cultural identity. After the furore of Charleston has died down, as it surely will, it may be that the claim to restore the flag’s reputation will draw upon the language of a human right to be a certain type of Dixie Southerner.
However, like freedom of speech, a right to cultural identity is not absolute. Indeed, understanding the basis and purpose of the latter may offer a better legacy to the US in the aftermath of Charleston, than the predictable recourse to the former. Whereas, the restrictions upon free speech in the US certainly do not require some sense of respect for others or basic common decency, a right to identity is conditional upon those who possess the right not using it to violate the human rights of others. A human rights’ violating culture has no right to exist as such. Thus, despite their efforts to do so, the white supremacist Afrikaner minority within post-apartheid South Africa were unable to claim rights to their identity given their desire to perpetuate forms of racial superiority within their jurisdiction. No cultural community has a formal right to perpetuate racism as an ostensive ingredient of the community’s identity.
Let us return to Dixie. If some good is to come out of those horrendous murders, then it is imperative that the US resists the urge to restrict the debate to very well-worn but entirely narrow constitutional channels. Free speech provisions will continue to afford racists the right to maintain their hateful prejudices. Far more good might come from the US looking beyond the confines of its own parochial legal and political cultures and paying due consideration to human rights and a specific right to cultural identity. The core question then becomes what kinds of cultural traditions and symbols have a right to exist? In turn, this will entail a serious examination of the competing interpretations of Southern identity in an attempt to disclose the residue of widespread racism within the collective heart and mind of Dixie. No symbol is inherently racist, just as no community need be inherently racist. It is crucial that the US begins to make sense of what protecting identities really entails. It is just as crucial that its legislators take concerted steps towards establishing a truly human right to cultural identity.
Disclaimer: The views expressed herein are the author(s) alone.