Time, place, manner: free speech at center of Confederate flag proposal

Canton parade

The South’s oldest Labor Day parade birthed a controversy this year that the parade’s founders probably didn’t foresee, but the nation’s Founding Fathers probably did.

The First Amendment to the U.S. Constitution is perhaps the most cited — and most misunderstood — component of liberty enshrined in that document, but it has long had its limits.

Those limits are about to be tested in the tiny Western North Carolina town of Canton, where a proposed policy penned by an alderman that would prohibit the display of certain symbols and imagery — including the Confederate flag — during municipal parades will soon be heard.

Whatever the result, the proposed policy will not only measure the public’s appetite for further government regulation of speech, but will also measure the changing public perceptions of Confederate memorabilia well below the Mason-Dixon line.

A promise kept

Within an hour of arriving home from the 111th Canton Labor Day Parade Sept. 4, Canton Alderman Dr. Ralph Hamlett had already received several emails.

“The emails were from people in the parade, and they were people of color,” said Hamlett, an associate professor of political communications and advisor of the debate society at Brevard College. “They thought that the flags were sanctioned by the town of Canton. And rightfully so, they were hurt.”

Long a tradition across the South and certainly no stranger to the North, display of the Stars and Bars has been near-ubiquitous in American society since the defeat of the Confederacy in 1865 — a perplexing and unique historical instance where the promulgation of imagery from a defeated rebel army was not only allowed, but in many cases, state-sanctioned.

“I wrote a response to those emails immediately,” Hamlett said. “And in that response, I made a promise that I would make sure that language which could be identified as hate language would be prevented at other municipal parades. This is the culmination of that promise that I made to those individuals.”

Hamlett’s proposed policy would have been unthinkable 111 years ago, and possibly even 11 years ago; today, such proposals — of which Hamlett’s is among the first of its kind in the nation — seem inevitable.

Although the Unite the Right rally in Charlottesville, Virginia, a few months ago marked a turning point in how Confederate monuments are viewed across the nation, real momentum in the flag issue began a few years earlier.

On June 17, 2015, 21-year old domestic terrorist and white supremacist Dylann Roof walked into a historic African-American church in Charleston, South Carolina, and murdered nine people during a prayer service, wounding three more.

Roof said he’d deliberately targeted the church in hopes of starting a race war; after his subsequent arrest, he was convicted of 33 federal hate crimes and in 2017 was given the death sentence for the murders. 

Before and during his trial, photos of Roof emerged showing him burning American flags, and waving Confederate ones.

But just days after the shooting and likely in response to the association of that flag with Roof’s crimes, major corporations — some with Southern roots — quickly moved to distance themselves from the issue.

Walmart stopped selling Confederate flags on June 22, 2015; the next day, NASCAR issued a statement reminding fans of its longstanding policy barring the use of the flag in events. Municipalities and local parade committees across the South soon followed suit.

That Christmas, Natchitoches, Louisiana, Mayor Lee Posey banned the Sons of Confederate Veterans from displaying the flag at a parade.

In January 2016, the world’s largest non-motorized parade — at the Fort Worth Stock Show, in Texas — did the same.

In 2017, a Melbourne, Florida, councilwoman moved to defund parades on the Fourth of July, Memorial Day and Veterans Day due to Confederate imagery, and the City of Paducah, Kentucky, limited parade entrants to groups representing the United States, again upsetting the Sons of Confederate Veterans. 

“Hate speech, or any type of speech that offends — in the past, we really didn’t have to say anything about it because things were different,” Hamlett said. “We have become, in my opinion, rather contentious and somewhat divided. We see it even in the office of the President, with his tweets, which are bullying.”

The proposed policy is formally titled “Canton Municipal Parade Rules and Regulations.”

Canton hosts a Labor Day and Christmas parade each year, and despite having an application process, does not currently have an entry policy; Hamlett’s proposed policy lays out a few dozen stipulations, along with enforcement guidelines and varying levels of sanction for violators.

Many, or most, municipalities have such policies, which like Hamlett’s cover both the mundane (”entrants must abide by assigned parade slot and assembly time”) and the obvious (“parade entries must follow the directions of all parade officials and law enforcement”).

Hamlett’s prohibits the display of “any image or content that includes nudity, profanity, lewdness, illegal drugs, violence, obscenity, hate, [or] racism.”

It further prohibits “anything that is vulgar, sexually explicit, insulting or offensive to any ethnic, religious, political or other identifiable group or individual, or that may incite violence.”

“Most of the ordinances that I looked at did not have an item in there that covers speech,” Hamlett said. “Most of them deal with the throwing of candy into the crowds, or cleanup after horses, or types of vehicles or decorations, but none, save a couple, did I see with what is included in this.”

To characterize Hamlett as a killjoy or fuddy-duddy interested in legislating morality isn’t quite accurate. The Canton native has a Ph.D. from Louisiana State University, a master’s degree from UNC-Greensboro and a bachelor’s degree from Western Carolina University; his most recent publication, according to Brevard College’s website, was on racism and he teaches First Amendment coursework to government students.

“I tried to exercise caution in drafting the ordinance because I’m a strong supporter of First Amendment rights,” said Hamlett. “I understand that individuals embrace certain symbols. And while I might disagree, I would respect their right to have, to possess, and to show them.”

Courts have long held that even outrageously offensive speech can oftentimes be protected, just as philosophers have long held that the speech most outrageously offensive is the speech most in need of protection.

But the First Amendment appears poorly understood by many — it guarantees rights not granted by any government, but instead acknowledges these rights as inalienable from all people; it upholds the unabridged freedom of speech and press, and guarantees the rights of peaceable assembly and redress of grievances.

Nevertheless, it only applies in government settings, and only outlines what the government can’t prohibit — it doesn’t guarantee you freedom to endanger others with your speech, it doesn’t guarantee you immunity from the consequences of your speech and it certainly doesn’t guarantee you the right to argue with trolls on Facebook or Twitter.

Even though the federal government can’t outright “prohibit” or “abridge” speech doesn’t mean that it also can’t prohibit certain types of speech, like the classic case of yelling “Fire!” in a crowded theater.

Hamlett said that while drafting his policy he talked to the Anti-Defamation League, a U.S.-based nonprofit founded in 1913 that calls itself “the nation's premier civil rights/human relations agency.”

Headed by former Obama staffer Jonathan Greenblatt, the ADL seeks to “secure justice and fair treatment to all citizens alike, and to put an end forever to unjust and unfair discrimination against and ridicule of any sect or body of citizens,” and, according to Hamlett, opines that his proposed policy would likely pass Constitutional muster if challenged in court.  

The standard that would likely be applied to any challenge of the policy refers to a Vietnam-era Supreme Court case concerning 19 year-old Paul Robert Cohen, who in April 1968 wore to the Los Angeles Courthouse a jacket bearing the words, “Fuck the draft.”

“People were visibly upset,” said Hamlett. Cohen was sentenced to 30 days for disturbing the peace, but the conviction was thrown out in a 5-4 decision because Cohen’s vulgar display was not alone compelling enough to convict.

“But that case,” Hamlett said professorially, “that case said you could put limits on speech according to time, place and manner.”

And it wasn’t the first.

Accordingly, Hamlett’s proposal takes into consideration the time, place and manner of speech in determining appropriateness, and indeed advises that “advocates for causes that may fall outside the nature of celebratory events designed for diverse family audiences” can ask the town for an appropriate venue in which to do so. 

“It is not preventing people from exercising their First Amendment rights,” Hamlett said. “They still have that, and I’m very cautious about that.”

The Decider

As Orwellian as it may sound, someone has to ultimately decide what is prohibited by the proposed policy and what is not; it’s notable that Hamlett’s proposed policy doesn’t anywhere mention the Confederate flag itself.

A statement on the ADL’s website, though, says that, “today the use of the Confederate flag is often controversial. While a number of non-extremists still use the flag as a symbol of Southern heritage or pride, there is growing recognition, especially outside the South, that the symbol is offensive to many Americans.”

The ADL, which did not respond to requests for comment, does go on to include one big caveat — that “because of the continued use of the flag by non-extremists, one should not automatically assume that display of the flag is racist or white supremacist in nature.”

However, the flag is still listed among 177 other hate symbols in the ADL’s General Hate Symbols Database, along with other Nazi symbols, Ku Klux Klan imagery, Pepe the cartoon frog and a variety of acronyms, hand signs and numbers like “1488” (the 14 represents the number of words in a popular white supremacist credo, and the 88 stands for “Heil Hitler,” both words beginning with the eighth letter of the alphabet.)

That hate symbol designation would place the flag squarely in the category of prohibited items if Hamlett’s proposed policy is adopted.

According to Hamlett, town parade officials will be entrusted to monitor entrants.

“It’s going to be up to them to make a call — a call which is informed, using reasoning,” Hamlett said. “It’s not arbitrary and capricious. It’s got to be content-neutral.”

Defining obscenity has been neither easy nor enviable; as Supreme Court Justice Potter Stewart said regarding a 1964 obscenity case, Jacobellis v. Ohio, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of pornography] and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

Stewart also ruled with the majority in the Cohen v. California case and in a further obscenity case, Miller v. California.

“The design here is not to target one symbol and excuse all the rest,” Hamlett said. “The design here is to have the municipality have a celebratory parade, whether it’s Labor Day or Christmas, and not to confuse people with, ‘Is the Town of Canton sanctioning certain symbols?’”

A marijuana leaf, for example.

“In North Carolina, that is an illegal activity at the present time,” Hamlett said. Hence, such symbols wouldn’t be allowed under his proposed policy.

Unless, the proposed policy reads, adherents to that cause — or other causes, no matter how popular — plan an appropriate time, place and manner for their event.

That obviously continues to leave open the door for groups like those that marched at the Unite the Right rally in Charlottesville to schedule a similar event in the town.

So what happens when the Ku Klux Klan comes calling in Canton?

“And if that did happen, we would allow it,” he said. “We would — with limits based on time, place and manner.”

Hamlett says he keeps revisiting that mantra — time, place, manner.

“This is a municipal event, and sponsored by taxpayers’ money. And with what we do, we should represent all the people, and if anyone feels that it’s a hostile environment, that they’re not welcome, we don’t want that. We want to treat people well. All people.”

The decision

Hamlett’s proposed policy comes at an odd time, logistically speaking.

It was first introduced during a town board meeting Oct. 26, but no action was taken so that Town Attorney William Morgan could have further time to scrutinize the proposal.

Canton’s next town board meeting is scheduled for Nov. 9, and as of press time an agenda was not yet available, so the proposal may or may not again be heard — with or without Morgan’s opinion — on that day.

But Canton Mayor Mike Ray declined to seek re-election this year, as did Alderwoman Carole Edwards; Alderman Zeb Smathers is running uncontested to replace Ray, and four candidates are seeking those two seats on the board of aldermen.

Election Day is Nov. 7, but election results won’t be certified by Nov. 9, and the next ill-fated meeting falls on Thanksgiving, so the town has tentatively scheduled a swearing in ceremony for Nov. 29 — an informal meeting at which no further town business will be conducted.

That means if nothing happens Nov. 9 with the current board of Mayor Ray, Edwards, Hamlett, Smathers and Gail Mull — who helped Hamlett with the proposed policy and said of it, “we just felt like we needed this” — the regularly scheduled meeting of Dec. 14 is the next opportunity for Mayor Smathers, Hamlett, Mull, and Carl Cortright, Brent Holland, James Markey and/or Kristina Smith to consider it.

Hamlett and Mull — who don’t face re-election until 2019, if they so desire — are definite yes votes, depending on what comes from Morgan’s diligence.

Mayor Smathers would only vote in the case of a tie between the two new board members and Hamlett and Mull.

Alderman Smathers, however, might have to stake out a position.

Given the lull in municipal government around the holidays and the likelihood of the subsequent Dec. 28 meeting being cancelled, coupled with Smathers’ announcement of an ambitious work session that will lay out a years-long plan for Canton, added to the fact that the status quo of the town’s 2017 Christmas parade will remain unchanged because applications have already been submitted, it’s conceivable that the time, place and manner of inappropriate speech in Canton could remain ambiguous well into 2018, just as it was 111 years ago. 

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