TC argues flag is government speech

Jun. 12—TRAVERSE CITY — The 'Progress' pride flag is flying at Traverse City's Clinch Park, and a ruling from the U.S. Supreme Court should protect it as free speech from the city government, according to the city attorney.

Attorney Lauren Trible-Laucht argued in telling city commissioners they weren't opening the flagpole up as a forum for other speech when they unanimously agreed to fly it there. First Amendment considerations mean the city must allow expression regardless of content in public forums, and protests at the nearby Open Space are the perfect example, she said.

But by resolving to fly the flag as an expression of the city government's support for the LGBTQ community during Pride Month, commissioners made clear whose speech it is, Trible-Laucht said. Another person or group could ask commissioners to fly a different flag there, but commissioners are under no obligation to do so, she argued.

"So basically the city commission is saying this is the viewpoint that we want to express through the city commission, and that doesn't open up, in this case, the flagpole as a public forum for everybody else to put up whatever kind of viewpoint they want to express as well," she said.

It's the same legal argument Dan Korobkin, the legal director of American Civil Liberties Union's Michigan chapter, made when asked about the city's move to fly the flag at Clinch Park.

The precedent comes from a case involving a different city denying a request to place a monument in a public park after accepting another one, Trible-Laucht said. Supreme Court justices sided with the city, agreeing governments have their own right to free expression and no one can force speech upon them.

That extends to expressions like a pride flag on a public flagpole, same as it would a monument should someone try to place one at the park, Korobkin argued.

Traverse City Mayor Jim Carruthers said he agreed with Trible-Laucht's argument.

"I was happy with the city attorney's opinion that basically points out everybody has freedom of speech, including the government, and a controlling government does what they want," he said.

He requested in late May to fly a pride flag outside the Governmental Center, which both Grand Traverse County and the city share for office and meeting space. He did so through the county's form to request to use public land.

Grand Traverse County Administrator Nate Alger rejected the ask, citing county policy barring any objects being hung from the county building along with any signs or symbols on county property.

Alger also cited concerns that allowing the flag would open up the Governmental Center flagpole as a forum for speech, and free speech implications would mean the county couldn't limit what else is displayed there, regardless of content.

The flagpole could become a public forum if the county has a policy stating that anyone can display their own flag on the pole, Korobkin said. But the county government opting to display the Pride flag there wouldn't automatically open it to anyone else, especially if the county has a policy stating the flagpole isn't open to outside groups to fly a flag there.

"It's all or nothing, if they allow other private groups to come in with their flags, they can't discriminate," he said. "The key here is, they are not or wouldn't be allowing private groups to set up their flag, they're saying, 'We're doing this, it's our speech, it's our way of expressing the county's message of support for Pride Month,' or whatever it is."

Anyone offended by speech a government chooses to make has a solution at the ballot box, but the government itself is likely on firm legal ground, Korobkin said. That's not so if a court finds the expression violates the First Amendment's ban on government support for or exclusion of any one religion, commonly known as the Establishment Clause.

Trible-Laucht said in the case of Clinch Park, the city owns the flagpole and has the right to speak using it, or not.

"And there are many other forums and avenues for people to express themselves other than that flagpole, so we're not really preventing anybody from their right to speak," she said.

Alger, in his letter to Carruthers, also pointed to confusion as to who the request was coming from, the city or Carruthers. So city commissioners unanimously adopted two resolutions, one to fly the flag at Clinch Park and another to ask the county to do the same outside the Governmental Center.

The city's request that the county consider flying the Pride flag at the Governmental Center wasn't on county commissioners' agenda for their Wednesday meeting, Alger said in a text message. A commissioner could add it before then, he added.

Alger responded to city Manager Marty Colburn's letter and resolution asking for clarification of what Alger called an incongruity between the two, he said in an email.

Colburn wasn't available to comment Friday.

County commission board Chairman Rob Hentschel said he understands county policy as no flags on the flagpole besides those for the U.S. and Michigan, he said. That would exclude any number of other flags, from those in memory of prisoners of war and the missing-in-action to the Gadsden flag ("Don't Tread on Me") and so on.

"One thing we can all agree on is, we're all Americans, so I like the policy for that reason and it's something we can all come under," he said. "Not all Americans will get together under a Pride flag or a Gadsden flag."

He said Trible-Laucht's argument that the county could fly other flags there without having to accept any others sounded reasonable enough, but couldn't say if it's correct and looked to the county's civil counsel for legal guidance.

That's the Grand Traverse County Prosecutor's Office — a message left there wasn't returned Friday.

Carruthers said he was sorry that some members of the county commission were lagging behind on being progressive, but Hentschel rejected the notion that not flying the flag — if that's the final decision — should be seen as lack of support for the LGBTQ community. Nor should it be seen as acceptance of the discrimination members of the LGBTQ community face, Hentschel said.

"The county's not for or against any particular group, we're here to serve our constituents," Hentschel said.

County commissioners will meet in person at 8 a.m. Wednesday, with Traverse Area Community Media broadcasting it on cable ch. 191 or online at https://www.tacm.tv/govtvnow.asp, their agenda shows.