The Star Press reports that:
The Indiana Civil Liberties Union is challenging the legality of Mayor Dan Canan’s ban on Confederate battle flags and other flags at the city’s campgrounds at Prairie Creek Reservoir.
I think the ban is indeed unconstitutional, for reasons I discussed here a few month ago, but which I thought I’d also repeat here:
An Indiana reader pointed me to this story, so I thought I’d check into it some more. After talking with the Mayor of Muncie (who was very pleasant and thoughtful, though as you’ll see below I differ with him on this), here’s what I’ve figured out.
Muncie, Indiana runs the Prairie Creek Campground (which is on property leased by the city from a utility, but for constitutional purposes it’s tantamount to city-owned property). Some people park their trailers there for up to four months during the summer, though the plan for next year is to limit usage to two weeks per year.
1. The First Amendment issue: Some campers have complained that other campers have been putting up Confederate flags. Others have complained about Budweiser and Miller Lite flags as well. (I didn’t even know that beer companies had flags, but I guess I’m behind the times.)
The city has therefore set up a new rule: No display of flags at the campground except for U.S. flags and POW/MIA flags. The Mayor’s explanation was that, especially in wartime, such flags are appropriate, and other flags are not. “Our policy, I think, is appropriate for the campground and the atmosphere that we’re trying to maintain for the campground.” The Mayor’s view seems to focus on the need to maintain “a good family environment” for campers’ benefit.
This policy, however, turns out to be almost certainly a violation of the First Amendment, because it discriminates among flags based on viewpoint. It’s possible that the campground is a traditional public forum (as parks generally are), but even if it’s treated as a “nonpublic forum,” viewpoint discrimination in speech by private persons would be unconstitutional. And permission of the U.S. flag and not other flags is indeed viewpoint discrimination: It allows the expression of a patriotic, nationalist, and inclusive-of-all-Americans viewpoint, but not a rebellious, sectionalist, or (in the view of some) racially exclusionary viewpoint — or for that matter of other viewpoints represented by other flags.
In fact, just last year the federal Court of Appeals for the Ninth Circuit held that such an exclusion of all flags but the U.S. flag was indeed unconstitutional viewpoint-discrimination. (The Ninth Circuit’s decision isn’t binding in Indiana, but it should be persuasive.) That case is actually harder than this one, since there the flags might have looked like they were posted by the state. Here, the flags will clearly be seen as the messages of the campers themselves, so the government really is discriminating among private people’s speech based on viewpoint. Under the U.S. Supreme Court’s precedents, this is unconstitutional.
2. The right to keep and bear arms issue: The UCLA Law Library also tracked down for me a copy of the written rules and regulations, and in them I saw this item: “No firearms or bow and arrows are allowed.”
The Indiana Constitution, however, states that “The people shall have a right to bear arms, for the defense of themselves and the State.” The Indiana Supreme Court has made clear that this includes the right to keep and bear arms for self-defense, Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990). The court has even held that a suspension of applications for a license to carry guns on one’s person violates the right: “Suspension of the handgun license application process did nothing less than deprive the citizens of a right guaranteed to them under the Indiana Constitution.”
The Mayor’s response to this was “The Rules and Regulations are known by people who are entering a campground. If they don’t like them, they can go somewhere else.” More broadly, throughout our conversation, the Mayor focused on the need to maintain “a good family environment” for campers’ benefit, and he seems to have thought that the public display of flags and the private possession of firearms would be inconsistent with such an environment.
But while I can see his point (though I don’t quite agree with it, since in my view families should be entitled to express themselves and defend themselves), I think the Constitution doesn’t allow the government to just say “To park here — and to live for several weeks or months here — you must waive your constitutional rights.”
The government as proprietor may have some extra power over its own property than it has over private property. But the Court’s First Amendment jurisprudence makes clear that this doesn’t include the power to restrict speech based on its viewpoint. And, I think, the Indiana courts ought to conclude that it doesn’t include the power to deny people their right to bear arms — or, for instance, their right to be free from unreasonable searches and seizures — in the place where they’re going to live and sleep, even temporarily.
The courts in neighboring Michigan, unfortunately, take a different view, allowing public housing projects to take away tenants’ right to bear arms. But for reasons I mention in that post, I think that decision is mistaken.
I wish the Indiana ACLU had also challenged the restriction on the other constitutionally protected rights (though I acknowledge, given the points I make above, that it would be a tougher case to win).
Thanks to How Appealing for the pointer.
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