Question: Is it legal to fly the confederate flag?
Written by ITL Attorney, Posted in Constitutional Law, Statutory Law
The freedom of speech protection provided by the First Amendment to the U.S. Constitution allows people to fly the confederate flag on their own property. However, the Government is not required to permit all forms of speech on public property. The legality of flying a confederate flag in public areas depends upon whether the area is designated as a public forum, limited public forum, or nonpublic forum.
Traditional public forums include public streets, sidewalks, and parks, while limited or designated public forums include public auditoriums or theaters. The Government may restrict speech in these forums if the restriction is narrowly tailored to achieve a compelling government interest. Nonpublic forums include areas such as airports and cemeteries; the Government is allowed to restrict speech in nonpublic forums so long as the restriction is reasonable and not an effort to suppress expression because public officials oppose the speaker’s view.
Multiple courts have upheld restrictions prohibiting confederate flags from being displayed in cemeteries, while courts in some states (such as South Carolina and Alabama) have approved the display of the confederate flag atop state buildings. Although a person is free to fly a confederate flag at their own home, one could potentially be restricted from doing so in a public place.