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Former WA AG: ‘Government may not prohibit the expression of an idea’

A man squirts lighter fluid on a burning U.S. flag outside of Bellevue Square Mall while looting takes place on May 31, 2020 in Bellevue, Washington. (Photo by David Ryder/Getty Images)

Demonstrations over the past week have included several incidents of flag burning, which prompted President Trump to show interest in passing a law to make flag burning illegal.

“This issue was squarely addressed by the Supreme Court in 1989 after a federal law prohibiting flag burning was adopted in 1989, the Flag Protection Act, and it passed the Congress, it was supported by President George H. W. Bush, and then it was struck down by the court in a 5 to 4 decision,” said Rob McKenna, former state attorney general.

Justice Scalia was in the majority on this vote, joining some of the liberals on the court.

“It basically said, look, it’s a bedrock principle underlying the First Amendment that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” McKenna said. “So it’s one of these line drawing issues, … very few of us think that burning the flag is a good idea. Most of us find it abhorrent. But if you say, well, we’re gonna outlaw that expression, what’s the next expression that gets outlawed?”

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The court’s decision shows that the most important thing is to allow people to express themselves, even if we disagree. McKenna thinks if this were to go to court now, it’d again be likely thrown out.

“First of all, you have the whole concept of stare decisis, … this idea that in order to promote stability in our legal system, courts will follow their own decisions,” McKenna explained. “They’ll follow their [precedent] unless they’re shown to be clearly wrong and harmful.”

There’s a high standard that must be reached for a court to reverse a prior decision. Additionally, McKenna pointed out, this is a decision from 1989, so it’s not too long ago.

“Having said that, though, it’s really interesting to look at how this issue breaks down because you have bipartisan support for the Flag Protection Act of ’89 that got passed in Congress, then struck down by the court,” he said. “The Flag Protection Act of 2005 was co sponsored by Hillary Clinton, who was in the Senate at the time. So this is an issue that people feel pretty strongly about and, to me, it really illustrates why it’s so important that we have three branches of government.”

Using consumer protection laws against Fox News

At the same time, there’s another free speech issue that came up in Washington state, which involves a group known as the Washington League for Increase Transparency and Ethics (WASHLITE). This group filed a suit in Superior Court in King County, calling for an injunction to keep Fox News from “publishing further and false and deceptive” content about the coronavirus pandemic.

“This was the result of some Fox News opinion hosts in February, March poo-pooing the coronavirus threat and one of them, who lost her job, was suggesting that coronavirus was a distraction from impeachment or trying to get people to change the topic,” McKenna explained. “The stories were silly and now look really silly because, of course, we all understand coronavirus is a really serious problem.”

WASHLITE tried to obtain an injunction to block Fox News from publishing further content that they said was false and deceptive under the state consumer protection laws.

“And they lost, … reading the news coverage they lost because of First Amendment protections for the press, which of course, are really important,” McKenna said. “I don’t see how any judge could find that the Consumer Protection Act of Washington covers the work that broadcasters do or, in this case, cable TV news outlets do.”

Even though people pay for cable, McKenna says it’s difficult to claim that it’s an unfair or deceptive practice under consumer protection laws when a cable TV station broadcasts “silly content.” The Consumer Protection Act typically protects the people against advertisers who make false or misleading claims about their services or products.

“Even CNN and MSNBC came to the defense of Fox News because no one likes the idea that news broadcasts and opinions that are expressed can be subject to the state Consumer Protection Act,” McKenna said. “It just runs right up against First Amendment protections for the press. And I think they were really concerned that somehow news providers don’t enjoy First Amendment protection if they distribute their programming over a cable television system, which is what this case was proposing.”

“By and large we don’t want to censor the press,” he added, “even if we don’t agree with what they’re saying.”

Listen to Seattle’s Morning News weekday mornings from 5 – 9 a.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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