PORTSMOUTH- An item of discussion in the last two sessions of the Portsmouth City Administrators appears to remain in that status after a response from the city attorney John Haas.
Haas received an inquiry from 2nd Alderwoman Charlotte Gordon during the November 23 meeting about the presence of Confederate flags on city properties, more specifically in the city’s property camps by the river.
He then said that he would need time to review the legal merits of banning the symbol, which would have been part of the city’s policy for campers, but felt that there would be First Amendment implications.
“We could ban all flags, perhaps,” said Haas last month, explaining that it would be easier to remove if the Confederacy symbol was part of the city’s motto or seal. “I just don’t know how you can choose which ones are offensive.”
O Portsmouth Daily Times Besides that contacted Haas after revisiting the item on December 14 and he later responded by email this week.
After his analysis, Haas concluded that a ban would violate freedom of expression protections in 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 such as falsely shouting fire in a crowded theater, slander and incitement to violence. “If the camp were privately owned, the private owner could prohibit the display of the flag because the First Amendment would not apply.”
It was “confusion,” he said by the Council in linking this proposal to actions by other states that banned the display or removed the Confederate flag from their state flags, like Mississippi and South Carolina.
“The difference is that the government can restrict itself and not (citizens), which is what is happening in the examples usually presented,” he said.
Gordon, who also heard of Haas, said she was trying to follow legislation passed by the New York state government earlier this month. The bill applies to hate symbols – 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 senator Alessandra Biaggi in May, the Senate passed its measure to a 57-3 count and was sanctioned by Governor Andrew Cuomo on December 15.
“Symbols of hate have no place in our society, let alone state property,” the Democratic senator said in a statement. “By limiting the hateful symbols of being glorified in state property, New York will denounce images that represent violence, while still recognizing our nation’s shameful history of oppression. This bill allows the state of New York to set an example and discourage the perpetuation of symbols that do not represent our values of justice and inclusion. “
In Gordon’s view, New York lawmakers went ahead despite potential legal challenges, an unwanted capacity or desire by the city. Cuomo noted this in his message of approval, first reported by the New York Post.
“While I fully support the spirit of this legislation, certain technical changes are necessary to balance the interests of the state in preventing the use of hate symbols on state lands with protections for freedom of expression incorporated in the First Amendment of the United States Constitution,” he said, referring to the symbols as “abominable.”
Even if no legislation emerged from the discussion, Gordon expects conversations about racism and discrimination to continue. Gordon and the Times received a good amount of feedback on the proposal, the Counselor having the support of other members of the 4th Ward Councilor Edwin Martell, 1st Ward Councilor Sean Dunne and 6th Ward Councilor Dennis Packard.
“I think a lot of people didn’t see that there was racism in Portsmouth,” she said. “I would like to open a healthy discussion about how we can open doors and change the paradigm.”
Talk to Patrick Keck (740) -353-3501 extension 1931, by email at [email protected] or on Twitter @pkeckreporter.
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