Restricting Confederate flag is tricky for government

Want to buy or fly a Confederate battle flag?

The mere thought will make many uneasy. The signature symbol of the Old South — a symbol that many believe does more to incite hate than document history — has received considerable attention of late.

Wal-Mart and Amazon are among the retailers that have recently announced they no longer will carry the Star and Bars on their shelves. Indeed, each passing day seems to bring another example of people, businesses or organizations distancing themselves from the image.

TV Land announced it will no longer air re-runs of the "Dukes of Hazzard," which prominently featured the General Lee — a car adorned with the Stars and Bars on the roof. Professional golfer Bubba Watson, who owns the famous orange Dodge charger, announced he will have the image painted over. And NASCAR has asked its fans to refrain from displaying the Confederate flag at all races and racing facilities.

So where might one still find this object of so much angst in Indiana? Perhaps at your local county fair. Maybe at the State Fairgrounds. Or possibly at a local convention center.

Retailers, businesses and private individuals have far greater discretion in restricting the sale or display of what they may deem an offensive image. The government? Not so much.

Legal experts say restricting the display and sale of the flag at government-sponsored events such as the Indiana State Fair and local county fairs is dicey, because they are bound by the First Amendment's protection of the freedom of expression, offensive or not.

Lesley Gordon, media and community outreach manager for the Indiana State Fair Commission, said fair organizers approve a list of items that vendors will sell as part of their contracts.

Furthermore, she said fair organizers do not approve items with images deemed offensive. But does that include the Confederate flag? Gordon says yes.

In fact, she said, vendors who display the flag at their midway booths — think Star and Bars-themed carnival prizes — have been asked to take it down.

"We don't explicitly list" the Confederate flag, Gordon said, "but we do have that discretion to remove it if we see it."

Or do they?

Ken Falk, legal director of the American Civil Liberties Union of Indiana, said this policy leaves the State Fair Commission vulnerable to complaints.

"There's a distinction; commercial speech is viewed with less protection as regular speech," he said. "But when it comes to allowing people to purchase it, no, I don't think the government has a right to deny people the right to sell an item that is lawful and that is used for expressive activity."

Those are the rules at the Indiana Convention Center and Lucas Oil Stadium, where individual conventions have discretion over vendors, according to Convention Center Director Debbie Hennessey. As long as it's legal, vendors at conventions can sell it, she said.

"Within each convention, their policies determine what they can or can't sell," she said.

At the county level, 4-H fairs often contract out the midway, meaning a third-party company determines which vendors are featured at the fair and what they sell.

One such company, Burton Brothers Amusements, handled the vendors at the recent Hancock County 4-H Fair. During a walk through the fairgrounds, a Confederate flag was spotted in the back of one vendor's booth. The booth, though, was unattended, and it wasn't clear whether the flag was for sale or merely on display.

Ben Burton, one of the owners of Burton Brothers Amusements, said the vendor was from outside the county and contracted in for the fair.

He understands the flag can bring up "ill feelings for some," but Burton also said that "it doesn't mean you ascribe to what you think that means."

"The way I understand it, for some people it's part of their Southern heritage, but on the other foot it can be offensive."

A recent CNN poll found that the country is deeply divided on the offensiveness of the Stars and Bars. The responses of those polled were especially divided along racial lines.

Seventy-two percent of black Americans see the flag as offensive, but only 25 percent of white Americans agree. In the South, 75 percent of white respondents see the flag as a symbol of Southern pride, not racism. Seventy-five percent of Southern black respondents said they see it as a symbol of racism, not pride.

Falk said this ambiguity in what constitutes "offensive" is why it's tricky for government entities such as county fairs to prevent vendors from selling Confederate flag merchandise.

"Whenever the government is saying we will let things in that are not offensive but exclude stuff that is offensive, you are dealing with very subjective judgments," he said. "The First Amendment certainly does not allow persons to be regulated by the government based on such subjective standards."

But for some, the First Amendment is less the taste test than what they believe is socially acceptable. So for every person who celebrates Southern heritage by flying their Stars and Bars, another sees a symbol of hate that should be displayed only in a museum or in a specific historical context.

That's Andy Faulks' milieu. He is the owner of Fall Creek Suttlery, a Lebanon business that provides uniforms, guns and, yes, flags for Civil War re-enactments, where one might also see the Star and Bars waving in Indiana.

Faulks said there are people who have adopted the flag to promote racist ideas, but "they're not necessarily representative of all of us."

When re-enactors display the flag, he said, "it is about heritage and history."

"A flag never did anything," he said. "A flag never hurt anybody."

Call Star reporter Ellen Garrison at (317) 444-6179. Follow her on Twitter: @EllenGarrison.