When a flag is against the rules... or the law

In recent years, flag restriction rules, policies and laws have been cropping up across the country. Whether the government is telling you what you can fly or what you cannot, there's always something behind the flag. We dig into how, why and when it's legal for the government to decide what you can or cannot fly and hear from Halifax, Massachusetts, about what a flag controversy revealed about that town. Learn more about your ad choices. Visit megaphone.fm/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Hannah McCarthy?

  Nick, you know how a couple of episodes ago, we learned about America's singular obsession with the Stars and Stripes? Well, today, we're going to hear another story about how, in this country, flags can spark some big feelings. But this time, it's not about the American flag, although that does play a role. It's a story about what happens when you use a flag to advocate for peace in the classroom.

• 0:29Nick Capodice?

  Huh, that sounds kind of tinkery, Hannah. Tinker v. Des Moines, the landmark 1969 Supreme Court case. The money quote being, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," end quote. For anyone who doesn't know, Mary Beth and John Tinker wore black armbands to school to protest the Vietnam War. The armbands were banned, that's a little hard to say, by the school district. The whole thing went to court and all the way up to the highest court, and the Tinkers won, so to speak. The ban on bands was indeed a violation of the First Amendment.

• 1:10Hannah McCarthy?

  It is tinkery. But this is very much a story of today, for reasons I hope will become clear. We're going to talk about something that happened in Halifax, Massachusetts, in 2021.

• 1:23Speaker 02

  So my name is Dana Cattaldo. I'm the new digital producer here at Civics 101. I do a bit of video producing and a bit of social media producing.

• 1:33Nick Capodice?

  By the way, if you've seen more of us on Instagram or TikTok lately, that is all thanks to Dana's excellent work. If you haven't, follow us at Civics 101 Pod to see me cook and to see Hannah reenact iconic scenes from movies. Okay, I digress. Back to Dana.

• 1:48Speaker 02

  When I was working at HuffPost in 2021, I saw this article get dropped in one of the Slack channels where you usually drop in different headlines that we might see come across from different regional news networks around the country. And I was so surprised to see the very familiar-looking sign posted in front of Halifax Elementary School that I attended when I was a kid. The headline that accompanied this was that the Halifax Elementary School had banned peace flags from the classroom. And so... It was something that just like it bore a hole in my head and I had to like, I couldn't stop thinking about it.

• 2:29Nick Capodice?

  Hang on, the peace flag? What is that exactly?

• 2:31Speaker 02

  It's like 10 vertical stripes. There's like skin tones and like rainbow stripes that are included in there. It has the word peace in black lettering across it. And from what I understand, the whole like idea behind it was it was this all-inclusive, like, you know, racially inclusive, um, sexual orientation, um, and gender inclusive flag that someone made. I'm usually not like very like ear to the ground when it comes to flags anyways. I'm like not usually a flag waver. So I just kind of saw it as like one of those peace flags that has like, you know, stripes and like, like inclusion or peace or something kind of to those effects. To me it was like this generic thing. And I was just surprised that there was this outrage over something that sounds like this.

• 3:15Speaker 03

  The peace flag has every single color on it. So that, to me, that should mean that it represents every single thing.

• 3:23Speaker 04

  10-year-old Charlie Eldres is in the fifth grade at Halifax Elementary School. Recently, his teachers and classmates hung these peace flags up on the back walls of their classrooms. Charlie says they hung them as a reminder.

• 3:36Speaker 03

  That up there was showing that everyone should have peace and not be rude, mean, and just accept people for who they are.

• 3:44Speaker 04

  But the flags were recently removed and the principal received requests from parents who wanted to display other flags in the classroom as well. In fact, the school superintendent sent home a letter addressing the issue, saying some parents felt their kids were being politically marginalized, saying, "Under equal access laws and regulations, we have to provide access to numerous points of view and cannot discriminate based on a particular viewpoint."

• 4:08Nick Capodice?

  Right, pause here. The school said it cannot discriminate based on a certain viewpoint.

• 4:16Nick Capodice?

  I don't know exactly what that means.

• 4:18Hannah McCarthy?

  Viewpoint discrimination is when the government regulates speech based on its specific quote motivating ideology unquote, or the speaker's quote opinion or perspective unquote. And the Supreme Court has said that this kind of regulation is quote, "an egregious form of content discrimination." It is a classic First Amendment violation.

• 4:42Nick Capodice?

  Okay, and in a school, for example, where there is some speech regulation allowed for certain reasons, what about that?

• 4:51Hannah McCarthy?

  Even then, the government is not allowed to permit some viewpoints and not others, with some rare exceptions that I will talk about later, but that does bring me to a major part of the story. We heard from a kid, Charlie, in that news clip. He was the one who saw the peace flags as being representative of, well, peace. So the other day Dana and I called up Charlie and his mom Lana and asked them to rehash the events. Here's Lana.

• 5:21Speaker 05

  You know, I'll be honest, when Dana first reached out, I was like, oh my God, do we really want to rehash all of this? Like, it was, but basically for Dana, I would do just about anything.

• 5:35Speaker 05

  At one point, they had changed the design of the flag from, I believe it was the word peace was written in white lettering, to change it to black lettering to include support for the Black Lives Matter movement. And once sort of the conservative folks in town got their hooks into that, like, it was just, you know, then it was, it was deemed political. And, you know, and the argument was, is that politics didn't belong in a child's classroom.

• 6:02Hannah McCarthy?

  So in response to the peace flag and to this nod to the Black Lives Matter movement, there were requests to hang blue Lives Matter flags at the school. And the principal had the peace flags taken down and no other flags went up. And here again is that kid from the news clip, now a teenager, Charlie.

• 6:21Speaker 06

  It was an overnight thing. I remember asking why they were taken down because I remember I had sat in the back of the room and the peace flag was right behind me. And it was weird having it be removed in one day. So I had asked my, I'm pretty sure it was my science teacher who had it hung up. I asked, why'd you have it removed? And she said that the principal had told them because of different parental complaints.

• 6:43Speaker 05

  It literally became you were either pro peace flag or pro blue lives matter. Blue lives matter is one thing. This rainbow peace flag of inclusion, it's completely separate issues, right? But people were completely divided. And like I said, you were one side or the other. And it did, it trickled down into school where like the kids were, like the parents were arguing and then the kids were arguing. And it literally, I would stand to argue that even to this day, we're still pretty much cut down the middle of whoa, you know, five years ago, which is crazy to say, five years ago, you were pro peace flag. So we can't talk now or we can't be friends because it's just, it's so, it was so polarizing. It was incredible.

• 7:28Nick Capodice?

  Okay, so you've got two viewpoints, viewpoints that the community saw as oppositional to each other, and a school taking down flags of one viewpoint and disallowing flags of another viewpoint.

• 7:41Hannah McCarthy?

  And believe it or not, that did not fix what was going on behind the flags. There's always something behind a flag. There is a meaning, a message, a movement. And especially recently in the US, at the public school, city and state level, there have been efforts to restrict which meanings, messages and movements get a flag and which don't.

• 8:03Nick Capodice?

  Okay, so we're not talking about flag desecration laws, right? Because we are actually allowed to desecrate the US flag. The Supreme Court said so in Texas v. Johnson.

• 8:13Hannah McCarthy?

  Right. We are talking about what kinds of flags you are or are not allowed to fly. School flag restrictions exist well beyond Halifax, though school policy is its own unique legal creature in so many ways because it is about a place of learning. There are also, however, city, county and even state flag restrictions.

• 8:38Nick Capodice?

  Wait, is this a new thing? How have I not heard of this before?

• 8:42Hannah McCarthy?

  Relatively, yeah. This kind of restriction has happened over the past few years. So, for example, Idaho, this is an interesting case. First, the state legislature voted on flags in public schools. They prohibited anything that represented, quote, "a political viewpoint, including but not limited to flags or banners regarding a political party, race, sexual orientation, gender, or political ideology," unquote. And then they passed a law explicitly dictating what flags government entities are allowed to fly.

• 9:18Nick Capodice?

  Now Hannah, I am wondering, is that first law a viewpoint issue? I mean, it literally has the word viewpoint in it.

• 9:26Hannah McCarthy?

  Well, that is the question, isn't it? And the American Civil Liberties Union, the ACLU, has weighed in on flag restriction legislation pertaining to cities, states, and schools in the US. They say that policies banning only and explicitly the rainbow flag, and by that they mean the pride flag, do constitute viewpoint discrimination.

• 9:49Nick Capodice?

  But this Idaho law isn't explicitly banning the pride flag, even though it is effectively banning the pride flag, both in schools and on government buildings.

• 9:59Hannah McCarthy?

  Nor is the prohibition limited to the list it provides of what it considers political viewpoints. That said, Nick, the public school law does define race, sexual orientation, and gender as political viewpoints, sandwiches them right between political party and political ideology.

• 10:20Nick Capodice?

  Hannah, wouldn't you say that sandwiching race, sexual orientation, and gender between politics is in the grand tradition of American sandwich making?

• 10:30Hannah McCarthy?

  Oh, I certainly would, but...

• 10:33Hannah McCarthy?

  Are they political viewpoints? And if the law isn't limited to that list, what else could be included? Is a flag that says, "I love trees," representing a political viewpoint? What about a flag that says, "I love Jesus"?

• 10:50Nick Capodice?

  When you start down that road, Hannah, and literally any opinion whatsoever could be considered a political viewpoint.

• 10:57Hannah McCarthy?

  And for that matter, if school districts, cities, counties, and states across the country already have policies dictating what kinds of political behavior their employees can and cannot engage in, why would you need a law defining what "political" is and where it is not allowed?

• 11:17Nick Capodice?

  Do school districts, cities, counties, and states across the country already have those policies?

• 11:22Hannah McCarthy?

  Oh, of course. You've got to find a way to balance a person's First Amendment rights with the need for government employees to remain neutral and non-coerced by politics. The policies vary, but they're standard fare, in part because the Hatch Act, which was passed in 1939, limits political activity for federal employees, and a lot of state employee jobs are funded by the federal government.

• 11:48Nick Capodice?

  So what counts as political activity in these policies?

• 11:51Hannah McCarthy?

  These are laws and policies about running for office, campaigning for a candidate, raising money for a party cause, advocating for a ballot or policy measure. A lot of the time, it has to do with what you're not allowed to do while on the clock.

• 12:07Nick Capodice?

  Okay, so a teacher hanging up their favorite candidate's campaign flag in the classroom, that would probably be against policy.

• 12:16Hannah McCarthy?

  Right. In a state where a teacher is, for example, not allowed to campaign for an office during instructional time or around their students. Idaho is one of those states, by the way.

• 12:32Nick Capodice?

  All right. So you're asking why you'd need a clarifying law when politics and public employees are already pretty well-covered?

• 12:39Hannah McCarthy?

  Well, I guess you need it if you want to clarify what your state considers political.

• 12:46Nick Capodice?

  Right. Okay, but Hannah, what is political? Or what are politics? Because now you got me thinking, and I am not totally sure how to answer that.

• 13:01Hannah McCarthy?

  Nick, I really did try to answer this. Like, I can tell you that the dictionary says it's, quote, "of or relating to government." There are legal and philosophical debates about what politics actually is or are, and for that matter, what government is, what public means, what social means, what conflict means. I think we should go to law school, and also, I do not have a good answer.

• 13:26Nick Capodice?

  Okay, well, I also think we should go to law school, but I think we cannot afford it, and we do not have time. But that aside, I'm still trying to understand how and when the government is allowed to say, "Not this viewpoint."

• 13:40Hannah McCarthy?

  I do have an answer to that, and I'll give it to you after the break.

• 13:57Nick Capodice?

  Haven't you out there ever Googled your own name, like, actually done it? You'll find your address, your phone number, maybe even that police report from the time you went to see Rain Man in the movie theater, but you were underage? Maybe that one's just me. But here's the thing. There are companies called data brokers, whose entire business model is collecting your personal information and selling it to advertisers, to strangers, sometimes to people running scams. And once your data's out there, it just keeps circulating. That is where incogni comes in. Incogni contacts data brokers on your behalf and sends them removal requests over and over, so your info doesn't just pop right back up. You set it up Once and they keep working in the background.

• 14:42Nick Capodice?

  You can even track the progress on a dashboard. And for our listeners, we have an exclusive 60% off an annual Incogni plan. Just go to incogni.com/civics or use the code civics at checkout. There's a link in the episode description. Remember, they can't harm you if they can't find you.

• 15:04Nick Capodice?

  Holiday season is coming and I don't think I have to tell you this might be a tough one because things are expensive in the fall of 2026. Everyone I know is looking for ways to make a little extra money prowling around the side hustle subreddits. But I will say, if you're looking to sell something to launch a store fast before the holiday rush, Shopify is the one stop shop platform for making a professional looking store without touching a line of code. You can sell anything and you can sell it anywhere that people shop online. You can have it done in minutes and you can launch before Black Friday, that time of year when more people are already shopping and ready to buy.

• 15:47Nick Capodice?

  So if you're ready to launch your business before Black Friday, go to Shopify.com/civics to start your free trial. That's Shopify.com/civics. Just go to Shopify.com/civics today to hear your first.

• 16:08Hannah McCarthy?

  The older I get, the more I am looking for truly lovable closet staples that I know I will reach for just as often next year as I do right now. I want a closet that doesn't need constant updates or replacements, just high quality clothes that last, especially the kind with tags that say 100%. As in 100% Mongolian cashmere, 100% mulberry silk, 100% organic cotton, just like the Quince Fisherman Cropped Cardi and I am wearing right this very second. This sweater has kept its shape, color, and softness for years now. I reach for it every single fall, every time I want a warm and elevated look. Quince gives you the quality you

• 16:49Hannah McCarthy?

  Expect from a luxury brand without the luxury price tag. Find the fall pieces you will reach for most at Quince. Download the Quince app for app exclusive offers or go to quince.com. Get free shipping on your order and 365 day returns. Now available in Canada and the UK too. And when Quince asks you where you heard about them, let them know it was Civics 101. It's a great way to support the show.

• 17:23Nick Capodice?

  We're back. We are talking restrictions, viewpoints, politics and flags. And just before the break, Hannah, you said you actually had an answer about how and when the government is allowed to say no to an opinion.

• 17:36Hannah McCarthy?

  Yeah, and I actually have a flag example and a Supreme Court case rolled into one to help us understand.

• 17:42Nick Capodice?

  All right, hit me.

• 17:43Hannah McCarthy?

  All right. Shirt Left v. City of Boston. Boston has flag poles outside of City Hall. Private citizens and groups could apply to fly a flag on one of those flag poles. A Christian organization applied to fly a Christian flag. The city said, no. The Supreme Court said, not so fast, Boston. You let other people in groups fly their flags. You do not personally select those flags or design those flags. This is a private citizen matter. This is not government speech.

• 18:16Nick Capodice?

  Government speech? Is that an actual legal thing?

• 18:20Hannah McCarthy?

  It is. The government doesn't have to pass a First Amendment test if it is speaking for itself. Now, the majority opinion also explained that deciding whether something is government speech requires an holistic assessment. But that assessment includes questions like, is the public gonna think this is Boston speaking for itself or someone else speaking? And does Boston already have policies or internal guidance about what flags groups can fly?

• 18:52Nick Capodice?

  So this complicates the matter, Hannah, because if these flag restriction laws we've been talking about are about government speech, then a First Amendment test isn't required.

• 19:04Hannah McCarthy?

  Which, by the way, the ACLU also pointed out in its memo about flag restrictions. But, you know, if a city in Idaho has a history of allowing the public to fly their own flags on government property. I think that could get tricky. That could be a shirt left question.

• 19:21Nick Capodice?

  All right, so let me ask this. Getting back to this story in Halifax, getting back to the peace flag,

• 19:28Nick Capodice?

  did the state, or the school district, or the town have laws or policies on the books dictating which kinds of flags could be flown?

• 19:37Hannah McCarthy?

  Well, OK. So Halifax now dictates that only the American flag can be flown in municipal buildings, though that wasn't the case at the time. But schools are, again, a different and unique thing. And when it comes to third-party flags in schools, that is up to the superintendent and the administration.

• 19:58Nick Capodice?

  All right, I guess that settles it? It's not a First Amendment question?

• 20:03Hannah McCarthy?

  Well, you know, I personally do think it is a little tinkery.

• 20:09Nick Capodice?

  So it is a tinker story?

• 20:12Hannah McCarthy?

  Well, let's go back to Lana and Charlie, the mother and son we heard from at the beginning of this episode. I asked Lana about district flag policy, thinking that this peace flag issue might be up to the school district to decide.

• 20:28Speaker 05

  So Halifax is part of the Silver Lake School District. It's regional, so it's Halifax, Plimpton, and Kingston. And for, you know, so these flags were taken out of the classroom. Halifax has a very strict policy now that the only flag that is allowed to be flown in any municipal building is the American flag. So there are no other flags allowed in any town building. However, I work at the high school now, and there are peace flags all over the building, all over the building. So it's literally, and I can't speak to like the elementary school or the intermediate school in Kingston and Plimpton, but like, so the kids are graduating. They go K through 6 in Halifax, and then they go to the middle school, and there's peace flags everywhere there, too.

• 21:10Speaker 05

  So it's almost like, it was like, it was a very mixed message.

• 21:14Nick Capodice?

  Hang on, the flag restriction only applied to Halifax Elementary?

• 21:19Hannah McCarthy?

  And the reason I say this is tinkery is because the major element of the Tinker v. Des Moines opinion was, does this cause substantial disruption in the classroom?

• 21:32Hannah McCarthy?

  Those black armbands, kids talked about them during lunch. Kids were even hostile to each other outside of the classroom. But the court said they were not a disruption. And in Halifax, the conversation inside and out of the classroom really picked up after the flags came down.

• 21:55Speaker 06

  You could definitely see that there was like a change in the classroom and in their conversations because they were, I don't know if they were explicitly told to keep politics away from the classroom. I assume they were, but they tried to avoid the issue, but it was inevitable to be brought up eventually. And I feel like somebody at some point said something and it started a big chain reaction and everybody just started really talking about it.

• 22:22Nick Capodice?

  So the effort to take what people saw as politics out of the classroom introduced a whole new world of conversation. Maybe even political conversation?

• 22:34Speaker 06

  I think 100%. It really, it like, it opened my eyes to like a new aspect of the world that I was previously unaware of. Like the aspect of politics and how people's ideas on different topics can differ. I tend to not let that like determine my friendships and stuff because some of my friends are right-leaning, some of my friends are left-leaning, and I just get to see a broader spectrum of ideas. And I feel like it, like, as soon as that happened, I started watching more of the news and just like being more aware of like my situations, my surroundings, and what's really going on in the world. And just like paying attention and forming my own views on everything.

• 23:13Hannah McCarthy?

  And Nick, here's the part of Tinker I think really applies here. Just as Abe Fortas wrote, quote, "Any word spoken."

• 23:24Hannah McCarthy?

  In class, in the lunchroom, or on the campus, that deviates from the views of another person, may start an argument, or cause a disturbance. But our Constitution says we must take this risk. And our history says that it is this sort of hazardous freedom, this kind of openness, that is the basis of our national strength, and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

• 24:03Nick Capodice?

  This hazardous freedom, something might cause an issue, but you have to give it the chance to.

• 24:10Hannah McCarthy?

  And I think, actually, in Halifax, that peace flag, that symbol that some people saw as divisive, it got its chance. It revealed its own disputatious society. And as far as strength goes, after it went away, a kind of union sprung up in its place.

• 24:31Speaker 05

  I think the peace flag was, you know, a blessing and a curse, because it did really reveal people's true colors. But within that, people who, you know, sort of aligned with whatever the peace flag stood for, and how, you know, just whether it's LGBTQ+ or Black Lives Matter, or anything, we found a sort of our community within the community.

• 24:57Hannah McCarthy?

  Or, as our digital producer Dana sees it.

• 25:00Speaker 02

  And you know, the more we talk about this, the more I like, come back to this like central theme of like, you know, the battles, like picking our battles. This is almost like, for the flag, for instance, you know, what would I rather have? Would I rather have a flag in a classroom? Or would I rather have these events and this persistent organization that like makes people feel included in my hometown? I would love both, but I would really prefer the second one.

• 25:36Nick Capodice?

  So Hannah, it does make me wonder, in these towns, or cities, or school districts, or states, where laws and policies are stopping certain flags from being flown, is it a bridge too far to assume this has resulted in flags being taken down?

• 25:52Hannah McCarthy?

  No, that is not a bridge too far. We may be civics 101, but we don't have to be naive. Of course, flags have been taken down. And in the details of bureaucracy, like in San Antonio, Texas, where states control the roadways, but cities control the sidewalks, people are walking on rainbows. In St. Petersburg, in Florida, where Governor Ron DeSantis ordered rainbow sidewalks painted over, the city installed rainbow bike racks. The city of Boise, Idaho, went so far as to make the pride flag an official city flag to get around the restriction. That is, until the state legislature passed a law fining cities $2,000 a day for defying their flag orders.

• 26:34Nick Capodice?

  Okay, but I do take your point. The government can legislate ideology and controversy, maybe even before the controversy happens, but this country finds a way to stay relatively permissive.

• 26:49Hannah McCarthy?

  Okay, speaking of ideology and controversy, the last thought I want to leave you with comes from Charlie, who seems to have discovered a secret option for living in a place where people disagree.

• 27:03Speaker 06

  I mean, I feel like I can attest to the fact that there's still definitely divide. I can like sense it within the school. The like, the different group of friends, like, there's definitely like, the people that are definitely left-leaning, but then there's also the people that associate themselves with the right and associate themselves with like, right-wing beliefs. But I feel like the border is slowly being lowered between the two, and we don't necessarily have to reside within those ideologies. We can disagree politically, but we can still get along and not be like harsh with one another day to day.

• 28:02Hannah McCarthy?

  This episode was produced by me, Hannah McCarthy, with Nick Capodice. Dana Cotaldo is our digital producer. Thank you, Dana, for bringing us this story. And Rebecca Lavoy is our executive producer. Music in this episode comes from Epidemic Sound. You can learn so much more about Tinker v. Des Moines, about rights in schools, about the First Amendment, all at our website, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

• 28:50Nick Capodice?

  Behind every success story, there are vulnerable moments and difficult lessons. My new podcast, Confession, pulls back the curtain so that you can hear those lessons directly from tech veterans like Satya Nadella, Dara Khosrowshahi, and more. I'm Ali Partovi, and I've had my share of painful learnings. I once screwed up a $50 million negotiation with Steve Jobs. I had so much shame after losing that deal, it was 10 years before I could share the whole story. Today, I run NEO, a venture fund and mentorship community for startup founders. Follow my new podcast, Confession with Ali Partovi, wherever you get your podcasts.