SC Confederate flag standoffs not about First Amendment


RHETT INGRAM and Tommy Daras make an unlikely pair.

Mr. Ingram repeatedly drove onto the campus of Heathwood Hall Episcopal School with a Confederate flag flapping from his side mirror after the school banned the banner. He and supporters say it’s all about exercising his First Amendment rights. Last week, the school presented him with a no-trespassing order, which he would have defied but for the fact that he didn’t want his children to see him arrested.

Mr. Daras tried to remove a Confederate flag flying from 130 square feet of privately owned property adjacent to his Orangeburg ice cream shop. When he was stymied by the owners, he lawyered up and asked the city to declare it a zoning violation, then went to court to appeal the city’s refusal. Now he is threatening vandalism over the flag that he finds offensive.

What the men share — and illustrate more powerfully together than either could alone — is a warped notion about their rights when it comes to the Confederate flag. It’s an all-too-common misunderstanding about the flag — and pretty much everything else related to expressing our views and being exposed to the views of others.

We’re so used to fights over things Confederate on public property that it’s easy to forget that the rules are entirely different on private property. On public property, we have a right to petition our government to remove or display the flag or any other emblem, and the side with the most votes wins — as the overwhelming majority of South Carolinians did when the Legislature finally removed the Confederate flag from our State House grounds in 2015.

THE PUBLIC FLIGHTS: A $5.3 million shrine to a $52 nylon flag? Seriously?

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But if people want to make their property a “no flags” zone, we have no right to take a flag onto their property. If they choose to fly the flag on their property, we have no right to take it down — or to expect the government to take it down. So Mr. Ingram is completely in the wrong. And so is Mr. Daras.

That’s not the end of the discussion, though, because they are far from alone in failing to understand that the civil rights guaranteed in the Constitution almost never trump the property rights of others.

“Congress shall make no law,” the First Amendment declares, “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It doesn’t say a private school shall make no regulations respecting free speech or the right to drive around its grounds with a flag. It doesn’t say an adjacent property owner shall not fly a giant flag that drives off your customers.

The Constitution isn’t about what individuals or private schools or churches or businesses can or can’t do. It’s about what the government can and can’t do.

It also doesn’t say, by the way, that your employer has to let you say or do whatever you want on company time — and for the life of me, I will never understand why anyone, on any side, would care what a football player does if it doesn’t involve a football or an injury or anything illegal. It doesn’t even say your employer has to let you say or do whatever you want off of company time, although individual and union contracts and, in some states, laws might require that.

The key word that people miss in the First Amendment is “law.” The Constitution isn’t about what individuals or private schools or churches or businesses can or can’t do. It’s about what the government can and can’t do. And even that’s not absolute.

The First Amendment doesn’t mean the government has to provide you a forum to say whatever you want, wherever and whenever you want to say it. It doesn’t mean the government has to let you block traffic to have your say. What it means is that if the government lets Black Lives Matter block traffic to have its say, it also has to let white supremacists block traffic to have their say.

Taking your business elsewhere is one thing that people have every legal right to do.

I feel sorry for Mr. Daras, the Orangeburg ice cream shop owner, who apparently has lost business and even been threatened because people assume he’s the one flying the Confederate flag.

But if he wants to sue, he probably ought to start with his real estate closing attorney and possibly the former property owner, if in fact his deed does not reflect the fact that the Sons of Confederate Veterans own that tiny patch of ground where the flag flies, or if it does and no one pointed that out to him before he made his purchase. Because if they do have a deed (and the fact that they’ve been paying property taxes on the land strongly suggests that they do), then they own it, no matter what Mr. Daras’ deed says. That means he has no right to dig up their monument or take down their flag.

In Columbia, Mr. Ingram withdrew his children from Heathwood after he received the no-tresspass order. That might not be good for his children, but if you don’t like the policies of an organization that wants your business, taking that business elsewhere — a tactic frequently used by people all across the political spectrum — is one thing that all of us have every right to do.

Ms. Scoppe writes editorials and columns for The State. Reach her at [email protected] or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.

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