Instead Of Destroying Symbols Of Racism, We Should Preserve Them As Material Evidence

WARNING: The following contains disturbing images and information. That is why you need to read it.

EXHIBIT A: Trump Rally before Capitol Assault — AP Photo-Evan Vucci

The murder of George Floyd was a wakeup call to injustices which have gone on for centuries. Looking around for something to do about the injustice of racism, many latched on to its symbols, which are everywhere: Confederate flags and statues, universities and other public places named after notorious racists, plaques and museums honoring those who fought for the “right” to enslave others.

While I appreciate the sentiment behind destroying these symbols of racism, and understand the emotional relief in doing so, I suggest something more practical to actually do something about the systemic racism today which these symbols of the past embody.

These symbols of racism should be preserved as evidence.

I mean this both in the literal sense of legal evidence, and the general sense of historic evidence.

Symbols of Racism as Legal Evidence

The symbols of racism are now particularly relevant as evidence in the Impeachment trial of Donald Trump and what I hope will be the criminal prosecution of all those who incited or encouraged the attempted coup of January 6, 2021. In those trials, Trump and his cohorts will argue that they were only exercising their First Amendment right of free speech. But as Justice Holmes famously said: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. United States, 249 U.S. 47, 52, (1919). The test, said Holmes “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Id.

The Supreme Court subsequently refined the “clear and present danger” test to be “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). As Justice Douglas put it in his concurring opinion there: “where speech is brigaded with action” then “prosecution can be launched for the overt acts actually caused.” Id. at 456–57.

This is where the symbols of racism come in. As shown in Exhibit A above, the flag of armed insurrection against the United States — the Confederate Battle Flag, was prominently displayed at the “Rally” preceding the assault on the Capitol, in plain view of Trump and the other speakers.

Knowing that many in the crowd were armed, knowing that the crowd included terrorist hate-groups who Trump had instructed to “stand by,” knowing that the crowd was peppered with these flags of violent insurrection, were not their words to “fight like hell” in order “to take back our country,” combined with explicit instructions to “march to the Capitol,” not “likely to incite or produce” the violent takeover of the Capitol building?

EXHIBIT B: Flag of Insurrection in the Capitol — SaulLoeb AFP via Getty Images-1230505137

The result of their words should have been clear. As shown in Exhibit B here, and describe in the Trial Brief in the Second Trump Impeachment:

“Many rioters carried Trump flags and signs, while others wore the insignia of fringe militias and extremists such as the Proud Boys and neo-Nazis, including a shirt emblazoned with the slogan, “Camp Auschwitz.” One insurrectionist paraded the Confederate battle flag through the Capitol halls — an act that thousands of troops gave their lives to prevent during the Civil War.”

This evidence should be used for the conviction of those who incited, aided or encouraged the Capitol Insurrection. This evidence is much stronger than that used to convict those of the left, especially those of color. In fact, the mere act of flying a red flag representing Communism has been enough to send some to jail. Why shouldn’t flying the Confederate Flag, accompanied by an actual insurrection, be enough to convict?

Symbols of Racism as Historic Evidence and Education

The last Jew in Vinnitsa, 1941

As to historic evidence, let me recount my own family story. I grew up with white privilege. But I also grew up with what I consider another “privilege” — the stories of persecution in my own family. Here is one:

After World War II, my Grandmother went back to Poland to see what had happened to her family there. She found that, when the Nazis occupied their town, the Poles (her former neighbors) actively helped the Nazis round up the Jews. First, her Polish neighbors identified the leaders of the Jewish community, including her father and brother — They were shot. Then, they helped gather the rest of the Jews, who were forced to dig their own mass grave. Gasoline was poured on them and they were burned alive. None of the family she left there survived.

I call these stories a “privilege” because they enabled me to learn what persecution meant, to learn the result of treating others as something less than human, even though I did not experience this myself. Those stories, these lingering symbols of oppression, set me on the path to dedicate my adult life to fighting persecution and racism.

To this day, Poland remains a center of anti-semitism, as well as other forms of xenophobia and racism. The reason for this is that Poland has attempted to erase all symbols, and all knowledge, of this history. Poland has even criminalized the act of “falsely blaming Poland for Germany’s Holocaust crimes” and is prosecuting anyone who dares to tell the truth about what happened.

The lesson is that we should not destroy the evidence of these atrocities, but preserve them and talk about them. In Germany, for example, high-school students are required to take classes on 20th-century German history, including the Nazi era and the Holocaust, and it has recently launched a nationwide program called Schule Ohne Rassismus, or “Schools Without Racism.”

We should follow the example of West Germany, and not Poland, in how we deal with these symbols of racism. Instead of burying them, we should preserve them as evidence, not only of a racist past, but of the systemic racism which persists. We should teach our children these stories, no matter how disturbing they may be, and discuss with them and each other, what we can do today. The symbols should remain, to remind us of our history.

If we do not learn from this history,

we will be doomed to repeat it,


and again,

and again

Representing the Working Class as a lawyer since 1982. Questioning everything, especially myself.

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