Legal Opinion:
Display of Nazi Flag in the Four Seasons Arena

TO:	City Commission
FROM:	David V. Gliko, City Attorney
DATE:	May 28, 1996
SUBJECT:	Display of Nazi Flag in the Four Seasons Arena

My understanding of the facts are as follows:

1. The Four Seasons Arena was leased for purposes of an antique gun show.
2. The purpose of the antique gun show was to sell firearms to the public.
3. The show was open to the public to come and go at their own discretion.
4. A Nazi flag was displayed on the wall of the Four Seasons Arena but was not offered for sale.
5. There was no other expressionof speech, commercial or political, associated with the display of the Nazi flag except as an item of antique memorabilia.

Of course, the legal issue is one of freedom of speech. Freedom of speech is guaranteed by the First Amendment to the United States Constitution and is protected from invasion by state action by the Fourteenth Amendment. City actions by ordinance, resolution, order or permit constitutes such state action and are within the prohibition of the First Amendment. Lovell v. City of Griffin, 303 U.S. 444, 450.

However, the U.S. Supreme Court has drawn a distinction between "commercial speech", i.e. advertising, and other forms of speech protected by the First Amendment.

Commercial Speech

"For the first two hundred years of our nation's history, courts did not recognize protection of commercial speech. See Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S. Ct. 920, 921, 86 L.Ed. 1262 (1942). In 1976, the Supreme Court extended First Amendment protection to commercial speech in Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S. Ct. 1817, 1825-26, 48L. Ed.2d 346 (1976) but it recognized a lesser measure of protection than was afforded other constitutionally guaranteed forms of expression. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 457, 98 S. Ct. 1912, 1919, 56 L.Ed.2d 444 (1978). In extending First Amendment protection to commercial speech, the courts long ago rejected the 'highly paternalistic' view that government can or should suppress commercial speech. Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557, 562,100 S.Ct. 2343, 2349, 65 L.Ed.2d.341 (1980). Rather, 'people will perceive their own best interest if only they are well enough informed, and...the best means to that end is to open the channels of communication, rather than to close them.' Virginia State Bd. Of Pharmacy, 425 U.S. at 770, 96 S.Ct. At 1829. Regulation that serves only to restrict the information that flows to consumers fosters 'the assum[ption] that the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information.' Bates v. State Bar of Arizona, 433 U.S. 350, 374-375, 97 S.Ct, 2691, 2704, 53 L..Ed.2d 810 (1977)." Wild Wild West Gambling Hall v. Cripple Creek, 853 F. Supp 371, 374 (1994).

After granting commercial speech limited First Amendment protection, the Supreme Court then set out in Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d. 341 (1980) the following four-part analysis to determine the constitutional contours of restrictions on commercial speech:

1. does the commercial speech involved concern lawful activity which is not misleading; and
2. is the asserted government interest in regulating such speech substantial; if so,
3. does the regulation directly advance the governmental interest asserted; and
4. is the regulation more extensive than necessary to serve the governmental interest.

A party who seeks to restrict expression bears the burden of demonstrating a substantial governmental interest as well as justifying the scope of any restrictions advancing the interest. See Fox, 492 U.S. at 480, 109 S. Ct. at 3034-35; Zauderer v. Office of Disciplinary Counsel of S. Ct. of Ohio, 471 U.S. at 626, 647, 105 S. Ct. 2265, 2279-80, 85 L.Ed.2d 652 (1985).

In our case, it appears the Nazi flag was displayed to attract attention for the commercial purpose of antique gun sales. If we accept this purpose for its display, it must be afforded the status of "commercial speech." "It is settled that commercial speech is speech which does no more than purpose a commercial transaction." Anheuser-Busch, Inc. v. Schmake 63 F3 1305 (1995). Therefore, we must determine whether there is a valid and/or substantial government interest in restricting such expression under the Central Hudson Gas test.

The question seems to be whether the mere offensiveness to one or all of the public demonstrates a "substantial governmental interest" in its restraint. I do not suppose, at this point, that the display of the Nazi flag would incite violence or some breach of the peace.

The question was answered in the 1980's cases concerning restaurant advertising and use of the name "Sambo's" as representing latent racial vilification. A federal court enjoined the City of Ann Arbor from denying Sambo's Restaurant the use of the trade name and explained:

"We must also reject the proposition that otherwise protected commercial speech is stripped of that protection because of its ancillary offensiveness. The Court in Virginia Board noted that much commercial speech may be 'tasteless and excessive,' 425 U.S. at 765, 96 S. Ct. at 1827, but those characteristics alone could not justify repression of the speech. And in Carey v. Population Services Int'l., 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d. 675 (1977), the Court stated:

Appellants contend that advertisements of contraceptive products would be offensive and embarrassing to those exposed to them, and that permitting them would legitimize sexual activity of young people. But these are classically not justifications validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression." Sambo's Restaurants, Inc., v. City of Ann Arbor, 663 F2d 868, 694, 695.

See also, Sambo's of Ohio, Inc., v. City Counsel of City of Toledo, 466 F. Supp. 177 (enjoining enforcement of ordinance prohibiting construction of restaurant unless the registered name "Sambo's" was stricken).

Therefore, it appears the mere offensiveness of speech, even though it is commercial speech, is not sufficient to demonstrate a "substantial governmental interest" to allow its restriction. As the courts have said, it is better to permit such tasteless and excessive speech and allow a well informed public observe and act in their own best interests, i.e. ignore or avoid the display; or, witness the same and recognize the reminder of politically evil tragedy.

Political Speech

If the display of the Nazi flag is not "commercial speech" (the flag itself was not for sale), then as a political expression, it would be entitled to the full protection of the First Amendment. In 1931, the U.S. Supreme Court decided Stromberg v. California, 283 U.S. 359, where the California Criminal Code provided: "Any person who displays a red flag, banner or badge...in any public place or in any meeting place or public assembly...as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as aid to propaganda that is of seditious character is guilty of a felony." Charges were brought against a young woman of nineteen who was supervisor of a camp for children in the foothills of the San Bernardino mountains. There was a daily teaching of class consciousness, the solidarity of the workers and the theory that the workers of the world are of one blood and brothers all. The charge against her concerned a daily ceremony in which she supervised and directed the children in raising a red flag, "a camp made reproduction of the flag of Soviet Russia which was also the flag of the Communist Party in the United States." The court opined that:

"It has been determined that the conception of the liberty under the due process clause of the Fourteenth Amendment embraces the right of free-speech. The right is not an absolute one, and the state in the exercise of its police power may punish the abuse of this freedom. There is no question but that the state may thus provide for the punishment of those who indulge in utterances which incite to violence and crime and threaten the overthrow of organized government by unlawful means. There is no constitutional immunity for such conduct abhorrent to our institutions." Stromberg supra, 369.

Ultimately, the Court found California's statute unconstitutional on grounds of vagueness and explained:

"The court considered that it (California statute) might be construed as embracing conduct which a State could not constitutionally prohibit. Thus it was said that the clause (California statute) might be construed to include the peaceful and orderly opposition to a government as organized and controlled by one political party by those of another political party equally high minded and patriotic, which did not agree with the one in power. It (California statute) might also be construed to include peaceful and orderly opposition to government by legal means and within constitutional limitations. The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. Stromberg, supra, 369.

I include extensive reference to the Stromberg case because it remains the leading case on the issue and to remind us of the danger of censorship of the free flow of political communication. Certainly, all of the tragedy and evil associated with the Nazi flag serves the purpose of reminding us of the excesses of government oppression unless restrained by our most scared institutions, i.e. the Constitution and our Courts.