Why Lexington's flag ordinance passes muster

September 2, 2011 • National News

Supporters of a Sons of Confederate Veterans rally wave flags in protest at Hopkins Green in Lexington, Va. , Thursday, Sept. 1, 2011. About 100 people gathered before a City Council hearing and possible vote on the proposal, which would limit flags on city light poles to the American, Virginia and Lexington flags. (AP Photo/The Roanoke Times, Sam Dean)

The last time the city of Lexington, Va., displayed Confederate flags, it received hundreds of complaints. The city then set out to make sure it wouldn’t happen again.

By passing a new ordinance, the city council has ensured that only the United States, Virginia and Lexington city flags [auth] will be flown from city-owned flag poles. It means no more Confederate flags, but it also means no other flags of any sort.

Though the city council’s actions led to a protest by the Sons of Confederate Veterans and a promise to pursue legal action, the ordinance almost certainly passes constitutional muster.

The key is that the city did not target Confederate flags, although clearly eliminating those was the driving force in its decision. Instead, it abolished all flags from city-owned poles beyond the official flags of specific government entities. It did not favor some non-government causes or ideas over others, which would have made the ordinance constitutionally suspect.

“I am a firm believer in the freedom to express our individual rights, which include flying the flag that we decide to fly,” Civil War re-enactor Philip Way said at a public hearing, according to an Associated Press story.

Yet the city’s ordinance has no impact on Way or others who want to express themselves. They can still fly a Confederate flag outside their home, wear Confederate flag caps and T-shirts and celebrate the heritage of the South during the Civil War era. Under the First Amendment, government can’t limit those private expressive activities, and the ordinance doesn’t try to.

Still, the Associated Press report on the hearing also highlights one potential drawback to the city council’s policy of unfurling only official government flags, quoting an ACLU representative:

“City council could live to regret this ordinance, as it imposes unusually restrictive limits on the use of the light poles,” said Kent Willis, the ACLU’s executive director in Virginia. “Sometime in the future when city officials want to use those light poles to promote a special event they may find themselves handcuffed by their own lawmaking.”

Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and

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