Ashland gains clarity on flag policy
Sep. 9—The city of Ashland will carefully expand which flags are flown on city property to commemorate certain events — without opening what acting City Attorney Doug McGeary referred to as Pandora's box.
"Opening it up to everybody means everybody has a right to it," McGeary said, referring to the First Amendment rights to freedom of speech that apply to flags and the statements they make.
If the city expands which flags it flies, he said, there has to be a policy for choosing the new flags and occasions, and who has the power to make those choices.
City Council previously discussed the proposed new flags during an Aug. 1 study session at the request of Councilor Gina DuQuenne.
She was inspired by the Juneteenth flag, she said, flown by the city before it was even a national holiday. She said she wanted to see a few other flags flying from city poles.
DuQuenne asked that the city fly a flag for Indigenous Peoples Day, Pride Month, Juneteenth, Ceasar Chavez Day, Martin Luther King Jr. Day, and a new city of Ashland observance — the Pride and Our Community Day — to be the second Saturday in October.
"Black Lives Matter, in my humble opinion, that flag should fly 24/7, 365 days a year until there is a target off our backs — that is not what I'm proposing," she said, "but the four flags I mentioned, that is what I'm proposing be hung and flown on city property," DuQuenne said.
Flying the Pride flag would be good for tourism, she said. Speaking as a queer person, she explained the flag signifies a safe place, and she felt others like herself would see the flag as an encouragement to play and spend money in Ashland.
McGeary brought up potential First Amendment problems with opening the door to new flags on city property. Earlier this year, the city of Boston had to answer to the U.S. Supreme Court in Shurtleff v. City of Boston.
According to the Supreme Court's written opinion, Boston allowed groups to use a public plaza for events and fly their flag on a nearby flagpole provided they filed some paperwork with the city. The city denied a Christian group access to the flagpole, citing concerns about separation of church and state. The court ruled in favor of the group and against the city.
Because they didn't have a policy in place to meaningfully review which flags flew, McGeary explained, the court ruled the flagpole had become a public forum, meaning by the First Amendment anyone has a right to fly their flag on Boston's flagpole.
The key is to develop a policy, as deftly as possible with some flexibility to allow the city to speak, as government speech, but with enough barriers that the city has control over whose flags are flying. The city doesn't want words put in its mouth, McGeary said.
"I would be the last person that would want to go to the plaza and see the Confederate flag hanging," DuQuenne said. "It doesn't have to be a public free-for-all."
Mayor Julie Akins found a flag ordinance from the city of Coos Bay, McGeary said, which would be helpful for him to craft the proper legal language around DuQuenne's idea. He also built on Ashland's existing policy and looked to other court cases for guidance around potential pitfalls.
The solution to the sticky constitutional situation came in the form of a resolution, which passed unanimously during the council meeting Sept 7. The city of Ashland will now fly commemorative flags for the five occasions suggested by DuQuenne.
The new policy will affect flagpoles at city facilities and public rights of way, according to City Council meeting materials.
In the future, new flags can be flown from Ashland city property if two city councilors agree and hold a presentation before the rest of council proving the virtue of the flag in question, McGeary explained. If the majority votes in favor, the city manager will organize the installation.
Reach Mail Tribune reporter Morgan Rothborne at mrothborne@rosebudmedia.com or 541-776-4487. Follow her on Twitter @MRothborne.
