UM flag flap: Confederate symbol stirs constitutional controversy

By TRISTAN SCOTT of the Missoulian
Posted: Monday, September 14, 2009

University of Montana student Kyle Johnson prompted a campuswide First Amendment policy debate earlier this month when he refused to remove a Confederate flag hanging from the balcony outside of his dorm room.

When the rebel flag was stolen on Friday afternoon, Johnson promised it would rise again – just as soon as FedEx delivers a new one. But the rights of students to display flags, banners and posters from inside their dorm rooms could now be struck down by a modification to UM’s existing policies.

Johnson, a 20-year-old transfer student from Virginia, says he was surprised when a resident assistant at Knowles Hall asked him to take down the dormitory adornment, but the RA was fair and polite, so he complied with the request. When a group of students outside the four-story Knowles Hall building began to cheer, however, Johnson decided to invoke his constitutional right to freedom of speech, and left the flag hanging from his balcony railing.

"To some people it may be viewed as a symbol of racism and bigotry, but to me it’s a symbol of my heritage and of the nation’s history. It’s a symbol of my own state’s history and my family’s history," Johnson said. "Forcing me to remove it was clearly a violation of my freedom of speech."

But regardless of a flag’s context or meaning, letting it fly outside a campus building is a violation of UM’s no-banner policy, which, as Johnson discovered through his research, does not address decorations or posters hanging inside the windows of a dormitory. The existing policy prohibits students from hanging flags or banners outside of a building, but it says nothing about hanging signs inside dorm room windows, even if they are visible to passers-by.

So, Johnson unstrung the flag and re-hung it inside his dorm room, which is defined by Montana statute as a "private residence." When the RA asked him again to remove the flag, Johnson again raised his First Amendment rights and took the issue to the director of Residence Life, who then consulted UM’s chief legal counsel.

Still, one student’s symbol of heritage is another student’s symbol of slavery and segregation, and last week someone broke into the study hall lounge – currently serving as Johnson’s interim dorm room – and spirited the flag away in protest; nothing else was missing from his room, Johnson said.

While he acknowledges the flag’s controversial history, Johnson says it also represents the cultural traditions of the South, and he can’t fathom why someone would go so far as to steal it.

"I’m completely open to everyone’s political beliefs. They can display whatever they want. It’s just a symbol," he said. "I was just astounded that someone would go to those lengths to remove a Confederate flag. I think it’s ridiculous that the symbol is viewed solely as this hateful thing."

According to UM’s legal counsel, David Aronofsky, Johnson is correct that the flag is protected by the First Amendment’s free speech clause.

"In this case, a Confederate flag falls into the category of First Amendment protected speech," Aronofsky said. "But if this was a school with a lot of racial strife, it wouldn’t be. If it’s a school with documented cases of racial violence, then it’s OK to ban it, because it constitutes ‘fighting words.’ It depends on the history of the school."

When it comes to fine-tuning campus policy, Aronofsky said UM is contemplating an "all-or-nothing" approach.

"Either any First Amendment-protected speech goes, or nothing goes," Aronofsky said, explaining that "Go Griz" spirit banners or signs promoting UM are an exception, but that any other departures – no matter how innocuous – would be unfair.

"Once you go down that road you’re basically requiring that other messages that are a lot less benign are included (in the policy)," Aronofsky said. "I don’t want to get into the business of splitting hairs, because the issue of the First Amendment is supposed to be applied broadly, and not narrowly. At least that’s the way I see it."

Those "less benign" messages would include the Tibetan prayer flags hanging inside one neighboring dorm window, as well as the politically charged "Obama Pro Choice" poster hanging in another, and the Budweiser sign beside that.

"It appears we need to have a policy of all or none," echoed Residence Life director Ron Brunell. "The case law seems to be fairly clear – you allow everything, or you allow nothing."

During the last presidential campaign, for example, Brunell said dorm windows exhibited all manner of political signs, promoting Obama, or McCain, or Ron Paul. But those symbols did not generate any student complaints, he said, which is what sets Johnson’s case apart from the others.

"This is a community, and we try to guarantee the rights of all our students," Brunell said. "But when you live in a community you have to be aware that some of your actions could cause others to be uncomfortable."

Johnson says he’ll continue to pursue the case on principle, but this week he’s moving out of his interim on-campus housing and into the Sigma Alpha fraternity house, where UM’s campus policies don’t apply.

"The university has a relationship with those organizations, but they are not part of the university-sponsored housing," Brunell said. "There is a working relationship, but they are independent housing facilities."

Such was the case at Johnson’s former school, Randolph Macon College in Ashland, Va., where the Confederate flag is a ubiquitous symbol of Southern pride. Johnson grew up in Winchester, Va., which he says changed hands more than 70 times during the Civil War and is the home to numerous major battlefields.

"It’s part of my heritage, and I can’t just ignore it," he said.

Aronofsky says the issue that Johnson raises is interesting, not because it draws on any unusual legal premise, but because it’s never been raised before.

"It’s never come up. And it’s interesting because it’s very straightforward public policy First Amendment law – you either allow any expressive message – so long as it’s not pornographic or obscene or antagonistic, and that’s a circumstantial test – or you prohibit them all. It’s either all windows or no windows," Aronofsky said. "We probably need to refine our policy a little bit, but it’s interesting that it hasn’t come up."

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