The privately funded displaying of Confederate flags on specific federal grave sites should neither be illegal nor the business of lawmakers. It is clearly one thing to regulate measures and actions taken at the expense of taxpayers, and quite another to interfere with private gestures and actions taken by private citizens. Today, Republicans suddenly pulled a proposed amendment attached to an Interior Funding Bill, added late Wednesday evening, which would have allowed the displaying of some Confederate flag symbols in federal cemeteries. The amendment met with immediate opposition and condescension from Democratic lawmakers. An article in the New York Times quoted Rep. G.K. Butterfield as saying:
“Don’t Republicans understand that the Confederate flag is an insult to 40 million African-Americans and many other fair-minded Americans?” he said, directing his remarks to Representative Ken Calvert, Republican of California, the sponsor of the amendment”.
Per usual, in symbolic and spoken matters that offend some particular group of citizens, and not others, emotions run high. The Confederate flag issue was forced to the front of legislative concern immediately after a crazy man, who killed 9 black people in a Charleston, North Carolina church, was depicted in Facebook images displaying the Confederate flag. The flag has long been a symbolic reminder of racism for many Americans, and an emblem of historic significance for others, particularly in the South where the Confederacy was born. The question becomes whether the private displaying of a Confederate flag, at a burial site, presumably by a relative or loved one, at that person’s own expense, is protected speech under the First Amendment of the United States Constitution. We know that “government speech”, under most circumstances, is not subject to the Free Speech Clause- thus, the State of Texas could ban or limit a person from displaying a Confederate flag on their license plate because the government regulates and controls the distribution of license plates, and regularly sends government-related messages on the plates (Mount Rushmore, South Dakota, America’s Dairy State, Wisconsin, The Land of 10,000 Lakes, Minnesota, etc.) and the government is accountable through the elective process. The government in these states, and others, has an interest in license plate messages because it may appear that the state endorses the message. But federal graveyards, although operated and maintained by the government, are not locales where the government can rightfully claim such a special possessory interest so that a private citizen cannot send an otherwise lawful message from the soil of the property. The government has only established a forum for the speech, not a venue for distributing “government speech”. Accordingly, absent any other constitutional bar, private citizens should be allowed to place the flags at the grave sites. Any law to the contrary, would likely be struck down, which happens often when politicians react too quickly to travesties of the type in Charleston.