Wednesday, August 11, 2004

MUNCIE – 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.

The ICLU sued Canan in federal court in Indianapolis on Tuesday, four months after the ban took effect.

"My only comment is that my decision was based on the advice of

[city attorney Charles] Chic Clark," the mayor said. "I would never make a decision like that without running it by the city attorney first."

The ICLU brought the lawsuit on behalf of long-time camper Tommy Wallace, who says he is known as "the mayor" of the campground.

The city adopted a policy in April that prohibits campers from displaying flags except for the American flag. The policy soon was amended to also allow displays of the POW/MIA flag.

Wallace, a native of Hazard, Ky., had displayed a Confederate battle flag from his trailer at the campground for more than a decade. The flag measures three feet by five feet.

"Mr. Wallace displays the flag as a symbol of his heritage inasmuch as he is from the Southern part of the United States," ICLU attorney Kenneth Falk reported in the lawsuit. "Mr. Wallace wishes to fly his Confederate flag at the campground … however, he is not doing so because he has been informed by city personnel that he would be evicted … if he flew the flag."

The ban is an unconstitutional violation of the First Amendment, the lawsuit alleges.

"It seems fairly clear that the city is attempting to do something it cannot do, which is restrict speech," Falk said in an interview.

The lawsuit asks U.S. District Court Judge Larry McKinney to enjoin the city from enforcing the ban. The lawsuit also asks the judge to order the city to pay ICLU’s attorney fees.

As a result of the ban, NASCAR, Harley-Davidson, Indiana Pacer, Indianapolis Colt, Confederate and other flags have been taken down at the campground.

"What all of this has brought to my attention is we as a city have created an environment at the campgrounds that is really not a campground," the mayor told The Star Press in May. "We’ve gone from campers renting camp sites to a trailer park. Instead of having campers who rent, we have campers who think they’re homeowners and they own the property. I blame the city. It falls on my shoulders."

The new policy on flags went into effect after a black family complained about Confederate battle flags being displayed by Wallace and others.

Displaying the Confederate battle flag remains a controversial issue at statehouses, schools and other venues throughout the country 139 years after the Civil War.

To some, the flag is an emblem of Southern pride. To others, it is a divisive symbol of the old South, a symbol of segregation and slavery.

Eugene Volokh, a UCLA Law School professor, said in an interview several months ago that the city’s new flag policy violated the right to free speech.

"Expressing a patriotic, nationalistic, inclusive viewpoint with the American flag is allowed," he said. "Expressing a rebellious, sectionalist, or, in the view of some, bigoted viewpoint with the Confederate flag is forbidden. So it’s viewpoint discrimination … ."

But according to Indiana University Law School professor Daniel Conkle, the case is not open and shut.

"The key issue is whether the city is acting in a way that discriminates against a particular viewpoint," Conkle said in a previous interview. "If the policy is broad enough to avoid that particular criticism, the city is probably on fairly stable ground. If a challenger can prove the city is targeting a particular viewpoint it doesn’t like, that challenger is likely to prevail."

The more exceptions the city allows to its flag ban at the campground, the stronger the First Amendment becomes, Conkle said.