Is it Legal to Fly the Confederate Flag?

Recent news regarding the protests in Charlottesville, VA that turned violent and killed a 32-year-old woman has sparked debates not only regarding hate groups and our nation's history of slave ownership but also the legalities of the entire incident. Since Charlottesville, there have been more protests across the nation as well as defamation, destruction, or toppling of other Confederate-era statues by government entities and the public alike.

Images from Charlottesville showed, among violence and bigoted chants, several Alt-Right individuals flying the confederate flag in support of their cause. The backlash has been so strong that even the American Civil Liberties Union (ACLU), the legal advocacy group that went to court to fight for the white nationalists’ right to hold a rally at Emancipation Park in Charlottesville, has felt some of it. The ACLU received hate mail and threats for supporting the free speech rights of a small group of neo-Nazis seeking to rally in Skokie, IL 40 years, and the legal organization experienced backlash once again for its involvement in Charlottesville. The difference was, however, the Skokie rally never happened; the Charlottesville rally ended in death.

In the aftermath, the question that many have asked is, “is it legal to fly the confederate flag?”

Right to Free Speech

The First Amendment of the United States Constitution affords us the protection of freedom of speech. This allows individuals to fly the confederate flag on their own property. That being said, the government is not obligated under the Constitution to permit all forms of speech on public land. As a result, whether or not it is legal to fly the confederate flag depends on whether or not the geographical area is designated a nonpublic forum, a limited public forum, or a public forum.

A traditional public forum can include parks, sidewalks, and public streets. Examples of a limited public forum, on the other hand, include public theaters or auditoriums. In both traditional and limited public forums, the U.S. government has the authority to restrict speech if this restriction is narrowly tailored to achieve a compelling government interest. Nonpublic forums include cemeteries and airports, among other locations. The U.S. government can restrict speech in a nonpublic forum but the restriction must be reasonable and not for the purpose of suppression the expression of speech because public officials do not agree with the speaker’s view.

Confederate Flags

Several courts across the nation have upheld restrictions by government to prohibit the display of confederate flags in cemeteries. Other courts, however, have allowed the display of the confederate flag atop state buildings. Thus, while someone has the freedom to fly the confederate flag on his or her property, there is a possibility that—while not per se illegal—the government will restrict this display in a public place.

If you or someone you know has questions about your Constitutional right to freedom of speech, whether it has to do with the possibly of flying the confederate flag or any other related subject, contact the knowledgeable Nevada attorneys at Parry & Pfau by calling (702) 879- 9555 today.