No, banning the Confederate Flag is probably not legal
Oct 10, 2013 | 100 views | 0 0 comments | 1 1 recommendations | email to a friend | print

The First Amendment is one of the most contentious amendments of the U.S. Constitution and often misunderstood. Every political sign, every Facebook comment, bumper sticker and even this publication depend on the sanctity and robustness created by its confines. It is in defense of this cornerstone of liberty that compels action to speak in its behalf.

Most recently, the County Commissioners have voted to ban the display of the Confederate battle flag from Expo Center grounds, directly touching upon the protections offered by the First Amendment. While their motives may be laudable, due to the violence they present to free speech I feel them to be misguided.

Being a contentious Amendment has one benefit: the Supreme Court has often decided jurisprudence as it relates to this Amendment to provide guidance as to its confines. Absent an exception to the First Amendment protections, any such action undertaken by the Commissioners to restrict said speech would be unlawful.

As with all rights, exceptions do exist that allow those rights to be restricted in narrow circumstances. It appears that the County Commissioners were relying on a few of these instances in support of this decision. I do not believe these apply, however.

The “fighting words” exception only applies when there is an immediate danger of violence or if a reasonable person would be compelled to violence. The fact that the Confederate Flag has been displayed in prior years without incident calls such a justification into question.

Next, contained in the contract to utilize the Expo Center is specific language which bans certain displays which the Commissioners deem inappropriate. This provision runs afoul of what the Supreme Court calls “unbridled discretion.” Simply put, this tenant provides that any provision that allows full discretion to state actors is unconstitutional as it creates a chilling effect on speech.

The final justification alluded to was that of the limitations of the First Amendment in schools. In the cases that create this exception, the Supreme Court was very clear this exception only applies due to the special nature of the learning environment and is limited to schools. The Expo Center is not a school, and those participating in the cook off are not children (though such a prohibition calls into question what some Commissioners might think of their voters).

While there is some question as to if the Civil War was fought over slavery or states’ rights, I believe the legality of this provision is not in question. I understand why the Commissioners chose to ban such display and empathize with those who take offense to the flying of the Battle flag. Although I choose not to fly the flag for these reasons privately, I cannot join the public ban due to the curtailment of individual liberty it would entail. Indeed, it is the responsibility and duty of every citizen to speak out and protect the rights of those they may disagree with.


Tres Beck
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