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Human Services Committee grapples with free speech after Confederate flag shows up at the beach.

The City of Evanston's Human Services Committee met via Zoom Monday night where members addressed the second item on the agenda, “issues involving hanging items on City property.”

The item was a response to the news story that broke last week involving a white family hanging a Confederate flag towel on city fencing during their trip to Lighthouse Beach on July 29.

Evanston resident LaShandra Smith-Rayfield drove to the Evanston Beach when she learned on social media that the towel had been spotted. Smith-Rayfield recorded her confrontation with the group, calling the towel “a racist symbol of hate.”

Smith-Rayfield called for action from other residents--almost no-one on the beach at the time stood up to support Smith-Rayfield or addressed the situation before she arrived--and the incident prompted protestors to come down to the beach with “Black Lives Matter” signs that day, resulting in the group with the Confederate towel to leave, and another protest on Friday, July 31.

The Committee asked for guidance from Kelly Gandurski, the City's Corporation Counsel, to help address questions about how the City can properly respond to such incidents in the future.

“I was asked to look at what other municipalities have done in terms of prohibiting symbols that may depict prejudice, hate, racism, all these things that Evanston is just not about,” said Gandurski.

The issue, as Gandurski explained, rests on the First Amendment.

“The U.S Constitution protects free speech, typically regardless of the content of the speech.”

Gandurski said that the limits on free speech are drawn to where it cannot cause imminent harm, and referenced the example of yelling “fire” in a crowded movie theatre.

While other municipalities have passed resolutions saying that they, as a city, will not hang signs expressing prejudice or hate on their property, but banning them across the board starts to get tricky and can violate the First Amendment. If a resolution is going to limit speech, Gandurski explained, it has to pass “strict scrutiny,” meaning that it must be content neutral.

“In this case, we were able to easily resolve the issue because no one should be hanging property on city property, whether it towels to dry on a city fence or hanging up something on city building, that is just not allowed generally ... for health and safety reasons ... that is a content neutral reason that we wouldn’t allow that,” said Gandurski. But outright banning speech and symbols across the board is something that municipalities and governments have to be very careful about because the Supreme Court has upheld the right to free speech, absent those imminent threat circumstances."

Ald. Robin Rue Simmons, 5, said she wanted to figure out a way to legally ban the symbol.

“I was on the side of looking to our law to figure out a way for us to ban that flag as a symbol of hate from all of our City facilities and any event. I understand the free speech argument, but can we not make a statement as a municipal government?” asked Simmons.

“Obviously that flag is a complete contradiction to all of our values here that we have stated in the City of Evanston," she said, "so what can we do as a home rule municipal government with values that are inclusive and welcoming?”

Gandurski explained that while cities have been able to pass resolutions saying that they will not allow hate symbols to be displayed on their property, they cannot stop someone from wearing their Confederate flag t-shirt and coming to the beach. And when it comes to whether they can hang a hate symbol on City property, she said, there are already laws in place prohibiting residents from using City property as a place to hang any of their items. In addition, she explained, residents need to acquire a permit in order to, for example, paint a mural on City property.

Ald. Simmons asked Gandurski to look to the fullest extent of prohibiting the symbol as hate speech, but acknowledged that banning hate symbols might bring up the questioning of other groups, such as the Black Lives Matter movement.

Gandurski explained that it does lead down a “slippery slope.”

“This is what they call a ‘slippery slope’ in legal argument. Different symbols mean different things to different people and generally speaking that definition is left more objectively and, in some cases, subjectively, depending on what it means to the group,” said Gandurski.

“We really would have to look at the specific objective of what the Council seeks to do. If you make it too broad, we open ourselves up to Federal lawsuits and First Amendment challenges and temporary restraining orders as a prohibition of free speech,” she said. "That flag, we all know what it means, but to others they may disagree and they have a right to disagree. What no-one has a right to do is to use a symbol in conjunction with offering an immediate threat of harm to an individual or group."

Rue Simmons publicly thanked LaShandra Smith-Rayfield for confronting the beach-goers with the confederate flag towel.

"I think she did a fine job of defending the residents of Evanston and our position on that flag," she said.

Ald. Peter Braithwaite, 2, said he didn’t want residents to get distracted from other issues in the community, referencing the current pandemic, Evanston's reparations initiative, and police defunding discussions.

“My simple perspective is this. The Confederate flag has no power over me or anyone who looks like me in the setting that we are in right now,” said Braithwaite, who urged the other aldermen to view the response from the community as a favorable one.

“In individual one-offs like this, I am just thankful that we have residents that stood up the way that they did," he said.

“If you look at the way that the day unfolded, as horrible as it was, you had residents on the other side able to voice their speech and send an equally powerful message, and I think that is really important because what our Constitution is based on is the expressions of ideas, and what we saw was that our community did not stand for that,” agreed Gandurski. "Speech was powerful that day, in equal and opposite manner."

Rue Simmons ended by saying she would like the City to craft a statement against the Confederate symbol in City facilities or raising the Confederate flag and asked Gandurski to come back to the committee with such language.

The next Human Services Committee meeting is scheduled for Monday, Aug 17.


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