In a bid to avert potential litigation, Merced is taking another look at its rules around how flags are flown in downtown’s Bob Hart Square.
The issue was discussed during the City Council’s most recent meeting at the urging of Councilmember Shane Smith.
Smith came to the council meeting with a list of proposed revisions to the flag policy. He said those proposed changes are geared toward proactively protecting the city from liability in the event of a free speech lawsuit.
Smith’s proposed revisions to the flag policy will go to City Attorney Craig Cornwell for review, and will likely return to council for further discussion at a later date.
The council discussion centered on how the city in recent years has offered a form on its website, allowing residents and community groups to make requests to display commemorative flags in Bob Hart Square alongside the American and state flags.
Those requests were typically brought before the council for approval.
Case in point: a flag honoring Black History Month is currently flying in Bob Hart Square during February. The Pride Flag will fly during June to recognize the LGBTQIA+ community. And the council recently approved a request to fly the Christian flag in recognition of Easter.
Smith, who is an intellectual property attorney, explained the city’s current policy essentially makes the flagpole a place for public expression that’s open to anyone, regardless of what their ideas are.
Should the council deny a request to fly a flag, Smith believes the city could be held liable on constitutional grounds for violating the First Amendment.
“In my perspective, the flagpole has become a public forum, and we are at a point now if we continue our current practice and policy, we cannot stop a third party – any third party – from displaying their chosen commemorative flag, so long as the time and the space is available on the flagpole. And that is true whether or not this council agrees with the viewpoint of the speaker,” Smith said.
“So a true hate group could show up tomorrow and ask us to fly a flag under the current policy,” he said. “…I think we’ve ceded control to the point that we can’t tell them ‘no.’ And I think that would be disastrous. And I think it exposes us to litigation risk if we did try to say ‘no.'”
What’s being proposed?
Under the flag policy revisions suggested by Smith, requests to fly commemorative flags would be made by members of the council – rather than private individuals or groups.
In doing so, Smith believes the flagpole would be considered government speech under the law, rather than a public forum for free speech.
“What we really need to do is bring (the flag policy) back to the dais so that it becomes government speech and council speech, otherwise we are going to lose control, and we’re going to unnecessarily be taking litigation risks along the way,” Smith said.
The council would also schedule their first meeting in October to make suggestions for which flags would be flown in Bob Hart Square the following year. The council would vote separately on each flag proposed by its members. During the second meeting in October, the resolutions for the flags would be voted on as part of the consent agenda.
The city would no longer have applications for members of the public to request a commemorative flag. However, citizens on their own volition could make recommendations to individual council members.
One commemorative flag would be flown at a time, for no more than 31 continuous days.
“This is a big town with a big heart.You know, if it doesn’t work, there’s always the option of no commemorative flags at all.”
Councilmember Shane Smith
Council open to Smith’s suggestions
All of the council members said they supported removing the flag application from the city’s website immediately.
Councilmembers Darin DuPont said although his preference would be to end the commemorative flag policy altogether as a “cleaner” way for the city to move forward, he’s not opposed to reviewing Smith’s potential changes.
Councilmember Sarah Boyle said she too would support getting rid of the commemorative flag policy, but she’s open to amending it.
“I brought this up in 2022,” Boyle said. “You know, this was a dicey conversation. Even though we want to be supportive of all groups in our community, there will be divisiveness no matter which flag it is.”
Flag issue has stirred controversy
The issue of which flags are flown in Bob Hart Square has been a point of contention among some Merced residents. Plus, the issue of commemorative flags being flown at government buildings has also been debated in other parts of the Valley.
In many ways, those discussions around the flag policy mirror current political divisions on a national level.
Earlier during Monday’s discussion, the Merced City Council gave final approval to fly a Christian flag in Bob Hart Square in April, in recognition of Easter.
The entire council approved that request, made by The Barn church, except for Councilmember Fue Xiong.
Xiong said the Christian flag has been used by extreme right-wing groups. Other members of the council were unmoved by Xiong’s words, including Mayor Matthew Serratto, who previously called that suggestion “inappropriate and kind of insulting.”
The vote by Merced leaders on the Christian flag isn’t surprising, given a U.S. Supreme Court decision on a very similar issue. Back in 2022, the court ruled the City of Boston must allow a Christian flag to fly outside its city hall, NPR reported.
Still, the court also determined cities are not prohibited from creating policies that say commemorative flags are government speech – and not a forum for free expression by the public.
The flying of the Pride flag in Bob Hart Square in previous years has stirred debate in Merced. Still, much of that controversy has subsided, and this year the Merced City Council unanimously approved flying the Pride flag.
Serratto did ask his colleagues whether the city would be better off ending the flag policy altogether, rather than importing controversy into council meetings.
“Or on the other hand, are we just exposing what’s already there, and giving people hopefully an opportunity to shed light on these things and co-exist better?” Serratto asked.
Smith said the city should “tighten up” the existing flag policy and “see how it goes” because it’s been a net positive overall.
“I agree with you Mr. Mayor, we are at times importing outrage, and we do get, you know, one flag group versus another, but I think if it’s just up here we can have a little more of a mature discussion and celebrate our different groups,” Smith said.
“This is a big town with a big heart.You know, if it doesn’t work, there’s always the option of no commemorative flags at all.”
That’s ridiculous that there a black history flag and a LGBT flag being flown out there. There should be an American flag, a California Republic flag and a POW-MIA flag to honor Americans who have paid the price for our freedom. It keeps everything neutral and doesn’t exclude anyone. Those other groups are irrelevant and do not need representation in the form of a flag.