YOU SAY YOU WANT A RESOLUTION
Here’s a piece from City Beat that raises some interesting First Amendment issues. And they all have to do with the Confederate Battle Flag. Ohio State Senator Cecil Thomas has introduced legislation in the Ohio General Assembly to “urge the powers of the governments that continue to make issuances containing the rebel flag to discontinue this practice, . . . and to urge Ohio retailers to remove from inventory any rebel flag merchandise.”
So any First Amendment issues here? I don’t think so. Let’s start from the end and work back. If the legislation prohibited retailers from selling rebel flag merchandise, that would be a problem. The First Amendment prohibits any law that “abridges the freedom of speech.” So a prohibition on the sale of rebel flags abridges speech. A resolution urging retailers to stop selling them isn’t an “abridgment.” Any retailer can ignore the resolution with no government imposed penalty.
But what about the part where Ohio urges other state governments to discontinue using the rebel flag? Doesn’t that potentially tread on the First Amendment rights of citizens of those states who for whatever reason support the flag? Probably not. The United States Supreme Court held in a 2015 case that when the government “speaks” it has First Amendment rights of its own. And so it can pick and choose what messages it wants to send. Nikki Haley, the governor of South Carolina for example, ordered the rebel flag removed from the grounds of the State Capitol in Columbia. She has that right. And when a state speaks it is not “barred by the Free Speech Clause from determining the content of what it says.” When a state tries to regulate other people’s speech is when the trouble starts.
As a practical matter, according to the City Beat article, it looks like the resolution isn’t going anywhere in the general assembly. But that is not because of the First Amendment. Just good old political inaction.