When a New Hampshire police chief pulled a homemade Islamic State flag from a wall at a dam this month, it spurred a host of questions about First Amendment rights in the era of terrorism.
Pittsfield Police Chief Jeffrey Cain said the black-and-white flag was causing alarm in the community. Chief Cain said he worked with the FBI on the matter but decided there was no crime in posting the flag and there was no evidence of a terrorist plot.
“No criminal charges are forthcoming,” he told The Washington Times.
Whether the chief was within his rights to pull down the flag, however, has become a thorny legal question.
Legal analysts believe it’s the first time an Islamic State flag has appeared on public land in the U.S.
Gilles Bissonnette, legal director at the American Civil Liberties Union of New Hampshire, said the key question is whether the dam is considered a “forum” where the government has permitted speech. If it has, then removing the flag could violate the First Amendment.
“If a forum is opened up to speech, the government cannot allow some speech and prohibit other speech solely based on the speech’s viewpoint,” said Mr. Bissonnette.
John Greabe, a law professor at the University of New Hampshire, said it would be a problem if American flags are being hung on the dam but only the Islamic State flag has been removed.
But he believes the dam fence hasn’t historically been used as a public forum, so there wouldn’t be a problem with Chief Cain’s removal of the flag.
“It would be akin to scrubbing a graffiti swastika off the side of a public building — an act that would be perfectly OK,” said Mr. Greabe. “Where things become trickier is if he then allowed the American flags that were put up in response [and in the same location or nearby locations] to remain in place.”
Indeed, that appears to have happened late last week when an American flag was hung at the site.
Mr. Greabe said that in places recognized as public forums, such as street corners, almost everything would be tolerated short of inciting violence or making specific threats. The law professor said he was surprised that the police chief had talked about investigating the flag.
“What was done there was not illegal,” the professor said.
Mr. Greabe compared it to hanging a Confederate flag, reasoning that the government can’t punish people for viewpoints that others find abhorrent.
But John Cardillo, a former officer with the New York Police Department, said the display of an Islamic State flag is not the same as flying a Confederate flag.
“We don’t have current actionable intelligence that Civil War re-enactors want to attack critical infrastructure points to disable the United States,” said Mr. Cardillo.
He said it’s naive to look at this incident only through the lens of the First Amendment. Because the flag was placed on the dam, which is considered critical infrastructure, it should be thoroughly investigated by the FBI, Mr. Cardillo said.
Civil rights lawyer Nitsana Darshan-Leitner is suing social media companies for displaying terrorism-related videos that she says encourage viewers to join groups and commit attacks. She said the national security value must govern speech when danger is present, but there should be a balance.
“You can indeed hang a flag of a designated terror organization, but you cannot go and encourage someone to go and take an act,” she said. “Hanging a flag does not create imminent danger.”
While analysts couldn’t recall another incident of an Islamic State flag being flown on public lands, a New Jersey man hung one outside his house in Garwood in 2014. The man said he was a Muslim and wasn’t aware that the flag was linked to the Islamic State, which is responsible for terrorist attacks worldwide.
The man took down the flag after neighbors complained, and the incident went viral.
“If he wanted to keep flying that flag, he could. The First Amendment would protect him,” said Mr. Greabe.
“The FBI would surely take note.”