Town officials are reviewing the implications of adopting a policy under which certain flags and banners could – or could not – be displayed under town auspices.
The town’s lawyers have recommended adoption of a policy, but one board member would prefer a blanket prohibition, at least regarding flags.
The issue was discussed at the Select Board’s meeting on Oct. 23 in response to new case law resulting from a suit in Boston that could result in the town displaying messages it doesn’t support.
“Our recommendation is you should have a flag policy,” said Attorney Nina Pickering-Cook of Anderson Kreiger. “What that contains is up to you but we are happy to provide the legal framework.”
After a wide-ranging discussion, member Margot Fleischman called for “somebody to work with the town manager, with counsel, to flesh out some of these options and try to thread this needle. I would be happy to volunteer.”
A memorandum from the law firm said, “The town is well-served, therefore, to adopt a formal policy governing how to process and rule on requests to display flags and banners on town property, whether the request is for government or non-governmental purposes. Doing so would make clear that the town is meaningfully involved in decisions of whether or not to display any particular flag or banner.
“When the town is meaningfully involved in such decisions, a future court is more likely to conclude that the town has created a program of government speech to which the restrictions of the First Amendment do not apply.
“This language is meant to establish that while private individuals and groups are able to request certain flags or banners be displayed, that request is just a request. After the request is made, it is up to the Board, in its sole capacity and discretion, to decide what to do,” the memo said. “And the board’s control even continues after the town makes its initial decision by retaining the ownership of the flag or banner, and ability to remove at any time.”
The draft policy counsel prepared features language “to make clear that the town is not restricting private speech,” Attorney Annie Lee said. “Without this applicability language, the policy could otherwise be interpreted to restrict the speech private individuals choose to make, such as through their clothing or through a sign or poster carried during a protest when they happen to be on town property.
“If the town adopts and flies a private banner, that display will be an endorsement of the subject on the flag or banner and all the things associated with it,” Lee continued. “Whatever the town decides is going to be endorsing everything that flag stands for.”
Board member Emily Mitchell said the draft policy is not clear when or where a flag can be flown, but Pickering-Cook replied, “Those things are up to you.”
Marilou Barsam, a founder and board member of Bedford Embraces Diversity, supported the draft policy, reading a statement at the meeting.
“When we requested that the town place our banner for Pride Month, we were told that there was no standing policy,” she said.
Barsam said her group suggests that the policy feature “specific examples of which values and causes the town does stand for.”
Policies in nearby towns have such statements, which “could make your decision-making process easier and your decisions more transparent.”
“We need to flesh this out more; there needs to be some subjectivity here,” observed board member Shawn Hanegan. “I would like to see something that says we are not advocating for or against. In the case of Pride, that is totally appropriate because that’s a group in our community celebrating who they are. These are the things we should be celebrating.”
Other than those for nation, state, and town, “I don’t think we should fly any flags,” said member Paul Mortenson, which is the current practice.
Mortenson, saying he would fly a pride flag every day outside his home, said, “Let’s just leave that in people’s homes and in their hearts.” He did acknowledge that “there are circumstances when it’s appropriate to make a statement.”
Hanegan pointed out that “we have banners that fly over The Great Road,” as well as temporary signs permitted for placement in front of the police station and the Public Works Department building.
“I see the utility of being able to fly banners for events and organizations that are not strictly town of Bedford sponsored,” said Fleischman, such as Friends of the Library or the Minutemen’s liberty pole-capping. “I can see a lot of reason to have a banner policy that gives us guidelines and parameters like a sign policy.
“Part of my reluctance is we are creating an avenue for people to come to us with requests,” Fleischman continued. “We would have to make these decisions at open meetings. I kind of wish we could have the ability to decide for ourselves what is government speech without having people come in and petition us.” Pickering-Cook said, “There’s no problem legally if a policy said we can fly any flag we want to and not take requests.”
“We should focus on the banners rather than flagpoles,” Fleischman said, “something that is meaningful to the community and accommodates the way we accommodate sandwich boards, and leave flagpoles out of it.”
Hanegan said, “It seems the consensus is there has to be tighter control than just open requests.”