ICLU Questions Legality Of Flag Restrictions
Seth Slabaugh, StarPress.com (IN), May 26
MUNCIE — Banning Confederate, NASCAR, Colts, Pacers and other flags while allowing American and POW-MIA flags at Prairie Creek Reservoir’s campground could cause legal problems for the city of Muncie, according to the Indiana Civil Liberties Union.
“The law is that in a public forum such as a park speech is protected, even speech many of us would find offensive,” said Fran Quigley, executive director of the ICLU. “The whole principle is, we let all kinds of messages be transmitted, and we don’t censor them and we certainly don’t favor one over another. Flags are certainly a form of speech that’s protected by the First Amendment.”
The city recently banned all flags except the American flag and the POW-MIA flag from the campground after receiving a complaint last year from a black family about the displaying of Confederate battle flags at the campground.
Given the fact the United States is at war with Ira — Qand the fact that Americans have been taken prisoner during that war — Mayor Dan Canan says it is appropriate to allow campers to display American and POW-MIA flags.
“If somebody wants to make an issue out of that, let them go ahead,” Canan said.
Indiana University law professor Daniel Conkle said the case was not an open-and-shut one. A challenger could sue the city and potentially win, but Conkle’s hunch is that the city would prevail.
“The way First Amendment law operates,” Conkle said, “much depends on the nature of the city’s policy. The key issue is whether the city is acting in a way that discriminates against a particular viewpoint. If the policy is broad enough to avoid that particular criticism, the city is probably on fairly stable ground. If a challenger can prove the city is targeting a particular viewpoint it doesn’t like, that challenger is likely to prevail.”
The more exceptions the city allows to its ban on campground flags, “the First Amendment would begin to get stronger,” Conkle said. “Once you get to the POW-MIA flag, maybe it gets a little trickier in terms of how the city would describe its policy.”
The city’s new policy on campground flags is not in writing.
That’s not a critical problem, Conkle said, but if there is a challenge, it’d be better for the city to have a written policy.
“Maybe we need to add that to the park rules,” said John Parker, park board president.
People who display Confederate flags at the reservoir probably think they are “rebelling against the establishment,” said John Rouse, a political science professor at Ball State University. “But history clearly shows that the Confederate flag is the symbol of institutionalized racism.”
Rodney Johnson, a 1972 graduate of Southside High School now living in Atlanta, recalls the Confederate battle flag causing racial division before being dropped as the school’s flag during his sophomore year.
Several years ago, Johnson joined thousands of others in a march in South Carolina to protest the flying of the Confederate battle flag on top of the Statehouse.
“When I see that flag, I think, one, of the Klan,” Johnson said. “Two, to me it represents what that flag stood for. They fought for slavery instead of against slavery.”