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Deborah Ross, a former executive director of the North Carolina ACLU, has taken some flak for the positions that group took and legal decisions it made with her at the helm.
Now that Ross, a Democrat, is running against Republican Sen. Richard Burr, some of those past decisions are coming up in attack ads targeting her.
One ad, released last month by the GOP group Senate Leadership Fund, attempts to paint Ross as unpatriotic.
"Ross defends those who want to burn the American flag, and even called efforts to ban flag-burning ‘ridiculous,’ yet refused to help a disabled veteran fly the flag," the ad states.
There are three parts to this claim, so we examined each one individually to see how accurate the ad is.
The first part of the claim is that "Ross defends those who want to burn the American flag."
In a way, this is both right and wrong, depending on how someone who hears the ad interprets it. Ross has defended people’s right to burn the flag, although she has said she does not defend the act itself.
"Flag burning is plain wrong, and I’ll stand up for free speech – even speech I don’t like," she told McClatchy in an interview last month.
Her stance is in keeping with nearly three decades of Supreme Court precedent that Americans cannot be punished by the government for burning the U.S. flag.
Doing so is a valid form of protest and free speech that’s protected by the First Amendment, the court ruled in its 1989 case Texas v. Johnson. That 5-4 decision came about in large part thanks to conservative justice Antonin Scalia, who was the swing vote.
The 1989 case applied only to Texas, but in 1990 Congress passed a law banning flag-burning – and the Supreme Court then struck it down as unconstitutional, applying the standard nationwide.
So Ross did defend flag-burning, taking the side of the Supreme Court.
Derided efforts to ban flag-burning
Next is the claim that Ross called attempts to ban flag-burning "ridiculous."
Seeing as she sided with the Supreme Court precedent on defending flag-burning, it’s not too surprising that this part of the claim is correct as well.
"We have a First Amendment right to burn the flag as symbolic speech," Ross said in 1995, while leading the state chapter of the American Civil Liberties Union, regarding a proposal to circumvent the Supreme Court rulings by passing a new constitutional amendment. "The Constitution protects that right. To spend time and effort on this is ridiculous."
Refused to help a veteran
This is the part that gets tricky.
In 2001, a veteran living in Caldwell County wrote the North Carolina ACLU for help in a neighborhood dispute.
Robert McClure, a former sergeant in the U.S. Army, had been flying an American flag at his home. But the company that owned the mobile home park where he lived asked him to take it down; a neighborhood covenant said that, among other rules, flag poles weren’t allowed.
McClure wrote to the ACLU asking for a lawyer to fight the company and win him the right to fly the flag. The ACLU declined.
Ross didn’t personally write the letter declining to take his case, but she was the boss at the time, so the claim seems to be accurate on its face. However, it ignores a few key facts.
The Constitution protects people from the government infringing on their rights. It doesn’t apply to interactions with private companies. That’s why you don’t have a First Amendment right to cuss out your boss, and why businesses are allowed to ban firearms on their premises.
And McClure was not just trying to bring a constitutional claim against a private company. According to the company, he had actually agreed to the covenants that banned flag poles when he purchased his property.
The letter from the ACLU turning him down said that the group received more requests every year than it could possibly handle, and thus "we can offer legal assistance in only a small number of cases with the maximum possibility of success."
According to news reports, the veteran’s dispute was nevertheless settled quickly, and he was allowed to fly the flag.
The Senate Leadership Fund’s anti-Ross ad said she "defends those who want to burn the American flag, and even called efforts to ban flag-burning ‘ridiculous,’ yet refused to help a disabled veteran fly the flag."
The first part of the claim, about defending flag-burning, is a bit vague. Ross has said she does not support the act of flag-burning but does defend people’s right to do so.
The ad is right that she said it was ridiculous to try to ban flag-burning. But where the ad diverges further from the truth is on the matter of the ACLU declining to represent a veteran when Ross was in charge. While technically correct, the group refused because the man was attempting to bring a claim that was not the type of legal battle the ACLU typically fights.
We rate this claim Mostly True.
McClatchy, Oct. 11, 2016, "Republican ad hits NC Senate hopeful Ross for ACLU argument in rape case"
McClatchy, Aug. 4, 2016, "ACLU didn’t help vet who wanted to fly flag; now it’s a campaign issue"
Votes and text of opinions in 1989 flag-burning Supreme Court case, Texas v. Johnson
National Constitution Center, June 14, 2015, "Inside the Supreme Court’s flag burning decision"
National Constitution Center, Nov. 12, 2015, "Justice Antonin Scalia rails again about flag-burning ‘weirdoes’"
Washington Free Beacon, letter from veteran to NC ACLU on flag situation
Washington Free Beacon, denial letter from NC ACLU to veteran with flag issue
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