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Watch | Can states ban the display of the Confederate flag? in 'Legally Speaking'

3News Legal Analyst Stephanie Haney breaks down what the states can and can't do when it comes to restricting display of the Confederate flag
Credit: Getty Images/iStockphoto

CLEVELAND — Legal Analysis: Right now, people are calling for government officials and private organizations to ban the display of the Confederate flag because of its tie to slavery, but those two groups aren't created equal when it comes to who can make that happen.

People are asking these groups to prohibit the display and sale of the symbol in what we think of as public places, like county fairs. 

Here in Ohio, there was even a bill proposed in the House of Representatives to do it. That bill didn't pass, but if it had, the results would have been questionable, because display of the Confederate flag is considered a form a speech.

Our freedom of speech is protected under the First Amendment of the U.S. Constitution, which reads in part:

"Congress shall make no law ... abridging the freedom of speech, or of the press."

The start of that sentence is the important part, because the First Amendment protects our speech from Congress, also known as "the government" or "the state." 

Legally speaking, our county fairs can do whatever they want when it comes to banning the Confederate flag, because they’re not run by the government. 

The First Amendment only stops the government from restricting our speech, except for in certain cases. 

Exceptions that are not protected include when someone says something that’s meant to provoke someone to break the law (also referred to as speech that is intended and likely to lead to "imminent lawless action"), speech used to intimidate, or legitimately threaten someone else.

You may be surprised to know that both hate speech, and speech that promotes the idea of violence are protected from being restricted by the state.

The government can limit where and when speech is expressed, but it has to be across the board (or "content neutral"), because restricting only a specific point of view is unconstitutional.

The closing speech in the 1995 film, "The American President," sums it up well, delivered by the character of President Andrew Shepherd, played by Michael Douglas. 

"You want free speech?" he asks of the crowd in the press briefing room and the fictional Americans watching at home.

"Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours."

Then the character brings up another controversial topic when it comes to free speech and flags.

"You want to claim this land as the land of the free?"he asks. 

"Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free."

To sum it up, if only popular ideas were protected, we wouldn’t need the first amendment.

Stephanie Haney is licensed to practice law in both Ohio and California.

The information in this article is provided for general informational purposes only. None of the information in this article is offered, nor should it be construed, as legal advice on any matter.

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