Does a city have a constitutional right not to fly a particular flag?
Lexington, Virginia, is an historic city of theÂ Confederacy.Â Â Robert E. Lee andÂ Thomas ("Stonewall") Jackson, the two greatest generals of the Confederacy – andÂ two of the greatestÂ military tacticians America has produced -Â are buried there, andÂ the city is home to both the Virginia Military Institute, a storied military college whose students fought valiantly in the CivilÂ War, and Washington & Lee University,Â renamed when Lee became President of the college after the Civil War.Â
Lee's defensive schemes stymied the vastly larger and better equipped Union armies, while Jackson's brilliant offensive strikes drove them back.Â Neither man wanted Virginia to secede from the United States, but their loyalty to their state outweighed their loyalty to their country.Â Had these two men led national armies instead of those of Virginia the Civil War would not have lasted a year.
Jackson died at Chancellorsville, but Lee survived and left military life behind, choosing instead to instruct our nation's youth.Â When Lee's army surrendered in 1865 Jefferson Davis, President of the Confederacy,Â vowed to continue the struggle and encouraged southerners to mount a guerrilla war against their government, but General Lee simply told his soldiers:
"Boys, I have done the best I could for you. Go home now. And if you make as good citizens as you have soldiers, you will do well. I shall always be proud of you. Goodbye. And God bless you all."
On Thursday evening, the city council of Lexington, Virginia, voted 4-1 to permit only three flags to fly from public light poles downtown – the American flag, the Virginia flag, and a yet-to-be designed municipal flag.Â This ordinance was the result of dissent that arose when the Confederate flag was displayed on public light poles during the annual Lee-Jackson Day festivities in January.Â Many city residents – particularly African-American residents – complained that the Confederate flag is a symbol of slavery and as such the city should not officially display it.Â
The Lexington ordinance does not restrict private displays of the Confederate flag.Â It is clear that individuals and private organizations have the right, under the First Amendment, to fly any flag they wish – or to burn or trample upon a flag.Â Displaying or destroying a flag is symbolic speech – expressive conduct – and it receives the same constitutional protection as speaking or writing.
Cities and all other governmental units alsoÂ have constitutional rights under the First Amendment.Â Governmental entities are restricted in one respect that individuals and private organizations are not; because of the separation of church and state, the government may neither endorse nor attack religion.Â The government must remain neutral with respect to religion.Â But in matters relating to social issues or foreign or domestic policy the government is nearly as free to issue communications or express its views as any citizen.
So the City of Lexington is perfectly within its rights to restrict public light poles to the display of only three official flags.
Was its decision wise?Â Did city council do the right thing?
Roberta Anderson of the local News-Gazette, in Lexington Council Approves Flag Ordinance, and Â Steve Szkotak of the Associated Press, in Lexington, Virginia Limits Confederate Flag-Flying, report onÂ reaction fromÂ people supporting and protesting the city's decision.Â On the one hand, the Southern CrossÂ is a painful reminder of the period of slavery.Â The southern states seceded for one reason, and one reason only – the institution of slavery was under attack.Â By 1860 the rest of the country had decided that slavery would not be extendedÂ westward, and as a result the slave states would henceforth be outvoted in the House of Representatives, theÂ Senate, Â and the Electoral College.Â The south had largely controlled the federal government since the founding of the country, and that control was now slipping from its grasp.Â It was only a matter of time before slavery itself – the principal source of wealth in the agrarian, feudal economy of the south – would be abolished.Â Southern leaders clamored for war, and when war came, ordinary southerners fought not so much for slavery but to defend their homeland from invasion.Â
They fought with courage against great odds.Â Â Approximately one-fourth of all southern white males of military age were killed, and most of the rest were wounded in that conflict. Â Even more Union soldiers were killed and wounded.Â For many southern whites the Southern Cross is an emblem of the pride they justly feel for the perseverance of their ancestors.Â I share that pride, for both Union and Confederate soldiers, white and black, who fought so bravely.Â That is why I visited the Jackson House and Jackson's grave in Lexington.Â It is humbling to remember the sacrifices that the Civil War soldiers and their families endured.
There is one more factor to consider.Â The Confederate flag is not merely a reminder of the Confederacy.Â It was also seized by terrorists like the Ku Klux Klan and segregationists like Alabama Governor George Wallace.Â It is not simply an historical artifact.Â In living memory it was wieldedÂ as a flag of hatred – of discrimination – of racial supremacy.Â This cannot be denied or overlooked.Â Those who wish to fly the Southern Cross only to pay homage to their Confederate ancestors are burdened with this legacy as well.Â I believe that it is because of this more recent use that the Southern CrossÂ was abandoned by the City of Lexington.Â There is no lack of pride in the Confederacy.Â But the City refuses to fly a flag that has acquired another, more sinister, meaning.Â There are surely other symbols of the Confederacy – even other flags – that could be used on occasions like Lee-Jackson day.Â While it is appropriate to honor Generals Lee and Jackson and their soldiers, inÂ so doingÂ it is not necessary to inflict harm upon the victims of slavery and discrimination.
Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.