Haas, citing First Amendment, says no to Rebel flag ban

By Patrick Keck - [email protected]

PORTSMOUTH- A discussion item in the past two Portsmouth City Managers sessions seems like it will remain in that status following a response from City Solicitor John Haas.

Haas received an inquiry from 2nd Ward Councilwoman Charlotte Gordon during the Nov. 23 meeting regarding the presence of Confederate flags on city property, more specifically on the city-owned campgrounds by the riverfront.

He said then that he would need time to review the legal merits of prohibiting the symbol, which would’ve been made part of the city’s policy for campers, but sensed there would be First Amendment implications.

“We could ban all flags maybe,” Haas said last month, explaining it would be easier to remove if the Confederate symbol was part of the city’s motto or seal. “I just don’t know how you could pick which ones are offensive.”

The Portsmouth Daily Times also reached out to Haas following the revisiting of the item on Dec. 14 and he later responded through email this week.

Following his review, Haas concluded that a ban would violate the freedom of speech protections of the U.S. Constitution and be subject to a legal battle that the city would likely lose.

“The First Amendment prohibits the government from restricting a citizen’s speech with very limited exceptions,” he said, listing exceptions like falsely yelling fire in a crowded theater, slander, and incitement to violence. “If the campground were privately owned, the private owner could ban the display of the flag because the First Amendment would not apply.”

It was “confusion”, he said by Council to relate this proposal to actions from other states that either prohibited the display or removed the Confederate flag from their state flags such as Mississippi and South Carolina.

“The difference is that the government can restrict itself and not (private citizens), which is what is happening in the examples generally presented,” he said.

Gordon, who also heard from Haas, said she was attempting to follow legislation passed by New York State Government earlier this month. The bill applies to symbols of hate – white supremacy, neo-Nazi, and the Confederate battle flag- and prevents the state from selling or displaying the symbols in public buildings or state fairs.

Proposed by State Sen. Alessandra Biaggi in May, the Senate passed her measure to a 57-3 tally and was signed into law by Gov. Andrew Cuomo on Dec. 15.

“Symbols of hate have no place in our society, let alone on State property,” the Democratic Sen. said in a statement. “By limiting hateful symbols from being glorified on State property, New York will denounce images that represent violence while still acknowledging our nation’s shameful history of oppression. This bill allows New York State to lead by example, and discourage the perpetuation of symbols that do not represent our values of justice and inclusion.”

To Gordon’s understanding, New York legislators went forward with this despite potential legal challenges, an ability or desire not wished by the city. Cuomo made note of this in his approval message, first reported by the New York Post.

“While I fully support the spirit of this legislation, certain technical changes are necessary to balance the State’s interests in preventing the use of hate symbols on state land with free speech protections embodied in the First Amendment of the United States Constitution,” he said, referring to the symbols as “abhorrent.”

Even if no legislation came from the discussion, Gordon hopes the conversations regarding racism and discrimination continue. Both Gordon and the Times received a good deal of feedback on the proposal, the Councilwoman having the backing of fellow Council members 4th Ward Councilman Edwin Martell, 1st Ward Councilman Sean Dunne, and 6th Ward Councilman Dennis Packard.

“I think a lot people didn’t see that there was racism in Portsmouth,” she said. “I would like it to open a healthy discuss about how we can go about opening doors and changing the paradigm.”

By Patrick Keck – [email protected]

Reach Patrick Keck (740)-353-3501 ext. 1931, by email at [email protected], or on Twitter @pkeckreporter.

© 2020 Portsmouth Daily Times, all rights reserved.

Reach Patrick Keck (740)-353-3501 ext. 1931, by email at [email protected], or on Twitter @pkeckreporter.

© 2020 Portsmouth Daily Times, all rights reserved.