Moral Permissibility as a Product of Effects Over Time, Not Momentary Effects
I have said that although government’s purposes are what implicate the putative right of freedom of expression, governmental actions must ultimately be assessed by their effects.[80] But consider the following scenario.
Assume two cities, A and B. A has a law forbidding “the public burning of the American flag to express contempt for the United States or its policies.” B has a law forbidding “burning objects on city streets and sidewalks.” Johnson, angered by U.S. foreign policy, burns an American flag on a street in A. Jackson, similarly angered, burns an American flag on a street in B. Each is prosecuted under the aforementioned laws and defends on freedom of expression grounds. Johnson may well have a good case.[81] Jackson, however, whose conduct and motivation were identical to Johnson’s, should almost certainly lose, or so I have argued in Chapter Two. Given their identical conduct and motivation, what explains the difference in freedom of expression outcomes? In other words, how can it be the case that if the effects of the laws of cities A and B on Johnson and Jackson are identical, the freedom of expression outcomes can differ?The most plausible answer goes something like this. It is true that in the cases of Johnson and Jackson, the effects of A’s rule and B’s rule are the same. But if we assume that both rules will endure over time, then the cumulative effects of each will differ. A’s rule will result in the suppression of those, and only those, who burn American flags contemptuously, and who are expressing a narrow range of messages thereby. It will allow those who wish to communicate other messages, or the same message by other means, to do so. At the same time, A’s rule will contribute very little to eliminating the danger of public conflagrations. B’s rule, on the other hand, will suppress all and only those who burn objects in public, regardless of their communicative intent, if any. Over time, therefore, A’s rule will more likely skew public debate than will B’s rule and will be less effective than B’s rule in promoting public safety.
The same point applies to other kinds of rules. For example, a rule that whites, but not blacks, may swim at a public pool is unjustifiable, but not because of its effects at any given instant in time. At 3:30 p.m. on Tuesday, only whites may be interested in swimming. At 4:30 p.m., after the whites have left, the blacks who wish to swim but who are not allowed are no worse off than if the jurisdiction in question had no public pool, which we may assume is a morally permissible state of affairs. But over time, if the rule persists, the effects of the rule will be that whites will be able to swim and blacks will not. These effects are what make the rule improper.[82]
IV.