JURIST Guest Columnist John W. Whitehead president of the Rutherford Institute says that the ban on all non-governmental flags in Lexington, Virginia is motivated specifically by the city’s intent to eliminate the display of Confederate flags and thus breaches its citizens’ freedom of speech …

When considering issue at the heart of Sons of Confederate Veterans, Virginia Division v. City of Lexington [PDF] it is good to remember Supreme Court Justice Benjamin Cardozo’s observation that, “Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.” This case is not about whether the Confederate flag should be displayed but whether we, as Americans, are committed to the idea of free speech. After all, the First Amendment was penned by the framers of the US Constitution to protect our ideas and speech — both the popular and the unpopular. However, if we allow censorship simply because an idea or statement may be controversial, we open the door for the government to discard anything deemed disturbing or offensive.

Deemed by some to be disturbing, offensive, racist and politically incorrect, the Confederate flag has not seen so much action since the battles of Gettysburg and Antietam. Whether emblazoned on T-shirts, imprinted on license plates, carried in parades or unfurled from state flagpoles, this symbol of the Old South continues to test the limits of America’s tolerance for free speech.

Lexington, Virginia, a community steeped in the history of the Civil War and the Confederate States of America (CSA), is the latest battleground over the Confederate flag. Located between the Allegheny and Blue Ridge Mountains, Lexington is the final resting place of two of the Confederacy’s icons: General Robert E. Lee and General Thomas J. “Stonewall” Jackson. Each man lived and was laid to rest in Lexington and their respective tombs (in Lee Chapel at Washington & Lee University and Stonewall Jackson Memorial Cemetery) are considered shrines for those who seek to preserve the heritage of the southern states and the CSA.

With such a history, it is of little surprise the Sons of Confederate Veterans (SCV), an apolitical fraternal organization dedicated to preserving the history and legacy of soldiers who fought for the CSA chooses to hold commemoration events in Lexington every January around Lee-Jackson Day, a designated holiday under Virginia law intended to honor these “defenders of causes.”

In early 2010, the SCV began preparations for the 2011 Lee-Jackson Day parade in Lexington. The SCV requested permission to temporarily display the Confederate flag from flag standards the city had erected along certain streets. The request was not unprecedented. In years past, other groups such as college fraternities, had been granted permission to fly their flags from the standards for special events. For example, in 1994, the city granted requests by Washington & Lee University and the Virginia Military Institute (VMI) to fly school flags on several occasions each year. Similar requests had been made by local college fraternities and sororities to fly their organizations’ flags, and the city has also granted those requests.

Although the SCV’s request created some controversy, city officials granted them permission to temporarily display the Confederate flag during the January 2011 event. However, at a March 2011 meeting to discuss the policy governing use of the flag standards, several individuals voiced their opposition to the display of the Confederate flag. As a result, the city adopted an ordinance that allows the display of only the national flag of the US, the flag of the Commonwealth of Virginia and the city flag of Lexington. The ordinance provides that no other flags may be flown on designated holidays.

There is little doubt that the ordinance restricting access to the flag standards was adopted due to concerns over the Confederate flag’s alleged racist connotations and in an effort to thwart the SCV’s ability to fly the flag. The SCV had already faced off against the city once before, in 1993, over displays of the Confederate flad. That lawsuit resulted in a consent decree forbidding the city from abridging the SCV’s right to display the Confederate flag.

The 2011 ordinance also resulted in a lawsuit, filed by The Rutherford Institute in the US District Court for the Western District of Virginia in January 2012. The suit alleges that Lexington’s ordinance is an exercise in viewpoint discrimination that violates the First Amendment’s protection of freedom of speech. Attorneys for SCV argue that by allowing private groups access to the flag standards, the city created a forum for expression. When government-controlled property is opened for use by the public for the purpose of expression, the government’s authority to censor expression in that forum is restricted. In particular, restrictions may not be imposed based upon the viewpoint of the speaker. SCV alleged that the ordinance cutting off the forum was “based upon [the city’s] disapproval of the content and/or viewpoint expressed by” SCV and its flags, and therefore constituted a violation of the First Amendment.

The district court granted the city’s motion to dismiss the lawsuit in June 2012. In doing so, Judge Samuel G. Wilson ruled that Lexington was free to adopt an ordinance denying private parties the use of flag standards along city streets even though it had previously allowed local organizations to fly their flags from the standards. In other words, although the court accepted that a flag standard constituted a First Amendment forum and that the ordinance was motivated by the city’s opposition to the Confederate flag, it ruled that a governmental entity is not required to keep a forum open and may close a forum it has opened “as it sees fit.” Moreover, Wilson wrote, “when a regulation plainly prohibits all expression in a nonpublic forum and has no discriminatory effect, the government’s particular motivation in enacting the regulations is immaterial.” Essentially, the Court held that forum closure, even if done in order to silence a single viewpoint, is not actionable under the First Amendment.

The ruling is both contrary to current case law and affords additional license to governments to restrict the places where the public can engage in expression. As recognized by the First Circuit: “[O]nce the state has created a forum, it may not condition access to the forum on the content of the message to be communicated, or close the forum solely because it disagrees with the messages being communicated in it” (emphasis added). In another case, the US District Court for the Western District of Missouri pointed out that viewpoint discrimination in the operation of a forum should be treated the same as discrimination in the existence of a forum: “Whether the exclusion is accomplished by individual censorship or elimination of the forum is inconsequential; the result is the same.”

For those who view the court’s dismissal of the Confederate flag case as a victory for racial tolerance, it is important to remember that censorship can be a terrible, two-edged sword — what is popular today can become unpopular and banned tomorrow. There was a time in this country during British rule when, if you spoke your mind and it ticked off the wrong people, you’d soon find yourself in jail for offending the king. Reacting to this injustice, when it was time to draft the Constitution, the founders argued for a Bill of Rights. James Madison, the father of the Constitution, was very clear about the fact that the First Amendment, which deals with the freedom of expression, including the right to free speech, was written to protect the minority against the majority. What Madison meant by minority is “offensive speech.”

Unfortunately, we don’t honor that principle as much as we should today. Hence, we have seen the caging of free speech in recent years, through the use of so-called “free speech zones” on college campuses and at political events, the requirement of speech permits in parks and community gatherings, the policing of online forums and the eradication of anything deemed even remotely controversial from both private and public forums.

Yet this is where we go wrong. The US Supreme Court has held that it is “a bedrock principle underlying the First Amendment…that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” Thus, it is not a question of whether the Confederate flag represents racism but whether banning it leads to even greater problems, namely, the loss of freedom.

Constitutional attorney John W. Whitehead is founder and president of The Rutherford Institute. The Rutherford Institute is a civil liberties organization that provides free legal services to people whose constitutional and human rights have been threatened or violated. Mr. Whitehead is also the author of book The Freedom Wars (TRI Press).

Suggested citation: John W. Whitehead, Elimination of Forum is Elimination of Freedom of Speech, JURIST – Hotline, July 18, 2012, http://jurist.org/hotline/2012/07/john-whitehead-confederate-flag.php.