THE LARGE Confederate battle flag that could often be seen flying over the treetops from Interstate 95 in Falmouth was taken down last week for the most prosaic of reasons: the Virginia Department of Transportation needed the land where the 80-foot flagpole stood since 2014 to complete the Northbound Rappahannock River Crossing and FREDEx lanes projects. So VDOT seized the parcel by invoking eminent domain.
After being notified by VDOT that the group that owns the flag could take the banner down itself or VDOT would hire somebody to do it for them, the Virginia Flaggers removed it without incident. But they also said they planned to raise it again at a new location.
Three years ago, a group of local residents who found the sight of the flag offensive demanded that the Stafford Board of Supervisors do something about it. Stafford lawyer Patricia Healy even filed a zoning complaint, claiming that the flag was really a “sign” that put it out of compliance with the county’s zoning ordinance.
But after consulting with the county attorney, supervisors leaned that they could not legally do anything about the oversized flag because: 1) it was being flown on private property; and 2) flags of “geopolitical entities” like the Confederacy were specifically excluded from the same ordinance Healy cited.
Furthermore, a flag is considered protected free expression under the First Amendment. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” the Supreme Court ruled in Texas v. Johnson, a landmark flag burning case.
Public sentiment in Virginia has changed, and many communities are in the process of removing statuary and other memorials to Confederate generals and soldiers. But there’s a big difference between monuments on public land and those located on private property.
So if the Virginia Flaggers do find another private plot to raise the flag of the vanquished Confederacy, it will again be protected by the First Amendment unless other considerations–such as in this case, the purchase of transportation rights-of-way –come into play. That’s the high price Americans must pay for free speech. The Bill of Rights does not protect its citizens from being offended by the speech of others.
Still, it’s noteworthy that the preeminent symbol of Old Virginia and a divided nation is being quietly replaced in the Fredericksburg area by modern new highways whose main purpose is to unite it.
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