The First Amendment is pretty clear: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Operative phrase: “No law.”
The devil, of course, is in the details, beginning with “shouting fire in a crowded theater,” the metaphor used by Justice Oliver Wendell Holmes Jr. in 1919 to suggest the First Amendment must be subject to sensible limitation.
Issue One: Sale of Confederate flags or merchandise bearing the image of the flag at county fairs.
In particular, a group, Fair for All, formed two years ago and has been actively lobbying and demonstrating for a ban at the Delaware County Fair.
The latest development came April 29, when the Delco fair board, under pressure from Cooperative Extension, and the state’s Attorney General and Department of Ag & Markets, agreed to ban the “display” of Confederate flags and related merchandise, but not their sale.
At last report, the Otsego County Fair had banned the symbol, but wasn’t enforcing the policy.
The Stars & Bars, of course, is freighted with multiple interpretations. Is it simply a dramatic graphic, or a symbol of thumbing one’s nose at authority, per “The Dukes of Hazzard,” or an expression of ignorance if its Civil War roots, or an overt or subconscious expression of racism.
To the point it’s an intentional provocation to violence, it would be covered by Justice Holmes’ stricture. Short of that, it’s one of the aggravations of living in a free society.
From a practical standpoint, if you find the Confederate flag objectionable, stay away from county fairs for the time being.
Issue Two: Flying the Pride Flag.
The Cooperstown Village Board, and its newest trustee, MacGuire Benton, should be congratulated for agreeing to be – it appears – the first Upstate New York municipality to trumpet acceptance by unanimously voting to fly the Pride Flag on Village Hall next June, which is Pride Month.
If the First Amendment means nothing else, it’s live and let live.
That said, the trustees would be wise to place their action in the context of a defensible policy.
While calling approval of his resolution “awesome,” the freshman trustee also suggested how things might get sticky: “There are flags that are indisputably racist, indisputably bigoted and don’t reflect the values of the majority of Cooperstown. I certainly wouldn’t support that.”
Certainly, but lacking a policy, does the Village Board have the standing to block any request that is less than “indisputable??
For instance, what if the local chapter of the National Right to Life petitions to fly its flag at 22 Main? Or NARAL, the National Abortion Rights League?
What if one religious denomination seeks to have a flag hoisted? Does the Village Board have the standing to say no? Then what about other religions, represented in the village or not, or the irreligious?
The Village Board shouldn’t be deciding whose First Amendments Rights get precedence. By trying to do so, is it opening itself – and, thus, taxpayers – to the possibility of expensive legal challenge?
Of course – “fingers crossed” – none of that may ever happen. But is “fingers crossed” a basis for good governance?