“That war (American Civil War) was inaugurated, not reluctantly, but lustily by men who believe property in humans to be the cornerstone of civilization, to be an edict of god, and so delivered their own children to his maw.
“And when that war was done the now defeated god lived on honored through the human sacrifice of lynching and racist programs. The history breaks the myth. And so, the history is ignored and fictions are weaved in to our art and politics that dress villainy in martyrdom, and transform banditry into chivalry. And so strong are these fictions that their emblem, the stars and bars, darkens front porches and state capitol buildings across the land to this day.”
– Ta-Nehisi Coates, We Were Eight Years in Power: An American Tragedy
City Solicitor John Haas received an inquiry from 2nd Ward Councilwoman Charlotte Gordon during the November 23 meeting regarding the presence of Confederate flags on city property, more specifically on the city-owned campgrounds by the riverfront. The Portsmouth Daily Times also reached out to Haas following the revisiting of the item on December 14 and he later gave this response through email this week:
“The First Amendment prohibits the government from restricting a citizen’s speech with very limited exceptions,” Haas 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,” Haas said.
“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.”
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.
(Patrick Keck. “Haas, citing First Amendment, says no to Rebel flag ban.” Portsmouth Daily Times. December 24, 2020.)
U.S. Constitution, Amendment XIII
Section 1.
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
Portsmouth, the Ohio Riverfront, the 13th Amendment – sometimes the environment and the history – both social and political – can influence an argument and even dictate the understanding of ethical interpretation. The Nazi swastika and the "Blood Drop" Cross of the Ku Klux Klan are both symbols defined as “hate speech” -- any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons on the basis of race, religion, skin color sexual identity, gender identity, ethnicity, disability, or national origin.
Let's consider what might be at stake if symbols of the Aryan Brotherhood or the KKK were also displayed and promoted on property owned by the city. Would the local government stand by while Neo-Nazis gathered or the Klan burned a cross on this public ground? The vile, violent history of these groups makes any such expression anathema – exercises devoted to evil that would surely incite hatred.
Portsmouth and James Ashley
The very environment of the Portsmouth riverfront should be a consideration in the legality of the display of a Confederate flag on this public ground. One of the most famous residents of the city took his inspiration to fight evil from his own experiences there. Perhaps, the city should name this same riverfront in his revered memory.
James Ashley moved with his parents and siblings to Portsmouth in the spring of 1826 at the age of four and grew to manhood here. In his teenage years, he had worked on flat boats and steamboats, running up and down the Ohio and Mississppi Rivers.
Ashley, notes that it was “during his life on the river (that) he saw much that horrified him with the slave system.” In later years he used to relate how “free negroes employed to work on the same steamer with himself would be kidnapped.” He grew to hate the "peculiar institution" (which he considered a violation of Christian principles) and the oligarchy that supported it.
Ashley began his active participation in the Underground Railroad movement in 1841, at the age of seventeen, when he assisted two groups of slaves across the Ohio, transferring them by a small boat from near Greenup to two operators that lived below Portsmouth, on the West Side.
(Andrew Feight, Ph.D. “James Ashley & the Thirteenth Amendment.” sciotohistorical.org.)
Ashley was elected to Congress just in time for the outbreak of the Civil War. At the side of President Abraham Lincoln, Ashley led the lobbying effort to convince wavering members of the House of Representatives to vote in favor of the Thirteenth Amendment.
In 1863, James Ashley filed legislation in Congress proposing the Thirteenth Amendment to the Constitution, forever abolishing slavery in the United States. If it had not been for Ashley's calculated strategy to push the Amendment through the House, the Amendment might very well have failed.
Today, Ashley is recognized as one of the most significant abolitionists in all of American history. Ashley's political activity and speeches also lend support to arguments that the original meaning of the Thirteenth Amendment was more than simply the end of slavery and involuntary servitude in our country and illustrate that the Amendment provided a broader source of liberty and equality rights that animated Ashley and his Reconstruction colleagues at the time of passage.
(Rebecca E. Zietlow James Ashley, the Great Strategist of the Thirteenth Amendment Georgetown Journal of Law & Public Policy, Vol 15. May 28, 2017.)
Considering the unique history of the role Portsmouth played in both the life of James Ashley and the abolition of slavery, a Confederate flag on public ground seems more of a hate crime than a First Amendment right.
Confederate Flag Limitation
2020 has been a year of reckoning for the Confederate battle flag. As Americans began to grapple with systemic racism, the flag has increasingly fallen out of favor.
Just this December, New York Gov. Andrew Cuomo signed legislation prohibiting Confederate flags and other "symbols of hate" from being displayed or sold on state-owned property, including the state fairgrounds. The only exception is when such symbols appear in books or museums, where they may be used for "education or historical purposes."
Cuomo highlighted growing attitudes of intolerance and hate as a reason for the bill.
"The horrific rash of anti-Semitic, anti-African American, anti-Hispanic and anti-LGBTQ behavior spreading across the United States is repugnant to our values as New Yorkers and Americans, and a new generation now bears witness to a rising tide of discrimination, hatred and violence that threatens generations of progress," he wrote.
"By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this bill will help safeguard New Yorkers from the fear-instilling effects of these abhorrent symbols."
Earlier this year, the US Navy and the Marines banned displays of the flag. Voters in Mississippi, whose state flag used to include the Confederate battle emblem, approved changing the flag to one incorporating a magnolia flower.
NASCAR announced in June it would prohibit the display of the Confederate flag at all events after Bubba Wallace – the only full-time Black driver on the cup circuit – said racetracks shouldn't allow them.
(Steve Almasy. “NASCAR bans Confederate flags at all races, events.” CNN. June 10, 2020.)
Looking to the past, in 2000 in West v. Derby Unified School District, the Tenth Circuit Court of Appeals upheld a Kansas school district’s suspension of a student for drawing a Confederate flag on a piece of paper during math class. Because the school had acted under the auspices of a well-defined policy designed to prohibit racial harassment and to minimize disruption of the educational environment for other students, the court found that the policy did not limit protected speech. Other challenges to school policies have yielded similar rulings.
(“WEST v. DERBY UNIFIED SCHOOL DISTRICT.”NO 260. March 21, 2000)
As Derby's population grew and became more diverse in the 1990's, the Derby School District experienced an increase in racial incidents involving students. Before you claim this ruling was a violation of the student's freedom of speech, consider the following:
During 1995, some white students at the high school wore shirts bearing images of the Confederate battle flag. At the same time, some African-American students wore shirts with an "X" denoting support for the teachings of Malcolm X. In response, some white students wore shirts that stated, "You wear your X and I'll wear mine" with a Confederate flag representing the "X" on the back of the shirt
In 1995, members of the "Aryan Nation" gathered just outside the entrance to the Derby High School and, in an attempt to solicit new members, passed out printed material to students as they left the school. The Ku Klux Klan also circulated printed materials off campus that students brought to school to distribute. The materials were passed around school by some students. Examples of the views found in these materials include: "When a White person copulates with a non-white their children will be non-white. If this race mixing trend continues it will only be a matter of time until America sinks into a monkey jungle of mixed races"
Around this time, school officials at the Derby High School and Middle School began seeing racial graffiti in bathrooms and on walls saying "KKK" and "KKKK" (the latter standing for "Ku Klux Klan Killer"). Additionally, students spray painted walls or sidewalks at the high school football stadium, which is located on the middle school grounds, with such things as "KKK" and "Die Nigger."
School officials received reports of racial incidents occurring on school buses used to transport students from all schools in the district. The Derby Middle School parking lot serves as a "bus terminal" where busloads of students from all grade levels are brought to transfer to other buses to be transported to their schools.
School officials also received reports of racial episodes at Derby High School football games, including one incident where a fight broke out because a student wore a Confederate flag headband.
Brad Keirns, the Assistant Principal of the Derby Middle School, testified at trial that he had seen instances of racial harassment in the middle school and that such incidents had a negative effect on minority students. Keirns said that some of the incidents involved the Confederate flag, including one where a student at school had a KKK or Aryan Nation card with a Confederate flag and other instances where students had drawn the Confederate flag on notebooks or on their arms. Keirns said that such incidents had heightened tension among students of different races and that the situation was potentially violent.
I fully understand the city solicitor's legal argument that “the government can restrict itself and not private citizens.” Still, there are limits to an individual's freedom of speech that a governmental body can impose. For example, the government can limit obscenity, fraud, speech integral to illegal conduct, and speech that incites imminent lawless action.
I also understand that, so far, no illegal conduct or lawless actions by those who choose to fly the Confederate flag at the city campgrounds have been reported to local authorities.
However, I believe under certain conditions and in certain environments, the display of hate symbols such as the Confederate flag should be restricted by “a well-defined policy designed to prohibit racial harassment and to minimize disruption” – a policy similar to that enacted by Derby School District.
A proactive measure to combat any “imminent” danger is wise and prudent. Whatever inconvenience or denial of rights this would impose on riverfront residents RESIDING ON CITY-OWNED PROPERTY would greatly benefit the common good.
And, guess what? In July 2020, Portsmouth City Council adopted an anti-discrimination ordinance with a 5-0 vote. The new chapter, titled “Discrimination Prohibited,” went into effect immediately.
With the ordinance, council created a human rights commission in regards to employment, housing, and accommodation discrimination. The amendment adds to the protections Chapter 171 by adding defense on the basis of sex, gender identity or expression, sexual orientation, and physical characteristics.
“It’s great that Portsmouth is ahead of the curve, in the state of Ohio, when it comes to ensuring people are not discriminated against,” said 1st Ward Councilman Sean Dunne. “It’s probably one of the most important pieces of legislation that I’ve been involved with since I started in January 2018.”
(Patrick Keck. “Portsmouth embraces anti-discrimination ordinance.” Portsmouth Daily Times. July 14 2020.)
Well, Mr. Dunne, here is the “curve” of hate crimes. The U.S. hate crime level is at its highest in over a decade. According to the FBI, in 2019 alone, there were 7,314 hate crime incidents involving 8,559 victims, nearly 200 more than the total number reported in 2018.
A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
Ohio ranked 8th highest of states in the nation for number of hate crime offenses.
Engage in vigorous, provocative argument about a controversial subject, and you’re likely to give offense. Give offense and you’re likely to be accused of spouting hate. This is really the issue here in Portsmouth: racial hatred should not be condoned by a government whose people are still struggling “to fulfill a promissory note to which every American was to fall heir … the promise of a dream deeply rooted in the self-evident truth that all men are created equal.”
America, won’t you take
your hands of hurt away?
lock them
drawer-deep
like the good
silver of grandmothers?
America I have seen
men whose faces are
flags
bloodied and blue with talk
seen the churches keep
like crosses burning
seen the lady who lines
your huddled shore, her
hand
rifle-raised,
her back turned away.
– Kevin Young, American poet and incoming director of the Smithsonian Institution National Museum of African American History and Culture
No comments:
Post a Comment