State lawmakers clash over proposed Confederate flag ban

SANDUSKY — Democrats and Republicans in the Ohio House battled last week over whether to approve an immediate ban on the sale of Confederate memorabilia, including the Confederate flag, at all county fairs. Democrats lost despite arguing the vote was about whether to allow expressions of white supremacy and treason. Republicans said they were given no chance to review the amendment and said it likely violates the First Amendment, which bans government restrictions on freedom of speech. The issue came up first at a Thursday meeting of the Ohio House Agriculture and Rural Development Committee. State Rep. Juanita Brent, D-Cleveland, offered an amendment to House Bill 665, which has provisions dealing with county fairs. Brent's amendment banned the sale, display, distribution or possession of "Confederate memorabilia" at county fairs. Republicans on the committee voted it down. Brent, citing an article in the Columbus Dispatch, noted the Ohio state fair has banned the sale of Confederate flag merchandise since 2015. According to the Dispatch, the state fair cited its longtime policy of banning offensive merchandise. Brent tried again with similar amendments when House Bill 665 came to the House floor late Thursday night. One amendment banned vendors from selling, display, possessing or distributing the sale of Confederate memorabilia, including the Confederate battle flag. Opponents tabled the amendment on a 56-34 vote, largely along party lines. State Rep. Bill Reineke, R-Tiffin; state Rep. D.J. Swearingen, R-Huron, and state Rep. Dick Stein, R-Norwalk, all voted to table the amendment. Brent also offered a second amendment, which banned the state from providing any funds to a county fair that allowed the sale of Confederate memorabilia. It failed 56-33, with Reineke, Swearingen and Stein again voting against the amendment. Brent responded with a press release accusing Republicans of favoring treason. "It was treacherous that the majority of the Ohio House Republican members voted against the passing of my amendment to prohibit the selling, display, and distribution of any confederate memorabilia. The Confederate flag is a symbol of treason against our country and oppression against all descendants of slaves, who are mostly African Americans," Brent said. "The civil unrest that is occurring in the streets requires us to take action, not give lip service. If we want all of our county and independent fairs to be welcoming spaces this symbol must be prohibited," she said. Brent said she'll try again by introducing a standalone bill. Swearingen issued a statement saying he doesn't support the Confederacy or its symbols but that the amendment had problems. "I do not support the Confederacy or its battle flag. I only fly one flag, and that's the American flag that is flown outside my house," Swearingen said. "Last week, late-night amendments were added at 11 p.m. to the county fair bill. The amendment in question would have jeopardized the bill that was providing crucial funding for our county fairs, as there were questions on the constitutionality of the amendment raised by lawyers for the House of Representatives. For those reasons, the amendment was tabled," he said. Alexis Miller, a Sandusky Democrat who is Swearingen's opponent in the November election for the state House seat representing Erie and Ottawa counties, criticized Swearingen. "Swearingen spoke at a Justice for George Floyd event on Sunday," Miller said. "By Thursday, he voted to support the Confederate flag. You cannot say black lives matter and then turn around and vote to support an open symbol of slavery and oppression of black Americans." Many private organizations have moved against the sale and display of the Confederate flag in recent weeks as the national movement against racism has picked up steam. Amazon, Walmart and other retailers have banned the sale of Confederate flags. And on June 10, NASCAR banned the display of the Confederate flag at all of its car racing events. In a statement, NASCAR said allowing the flag runs counter to its policy of providing a "welcoming and inclusive environment" to everyone. A Confederate flag ban on government property could be legally more problematic than a ban by a private organization or company, according to a memorandum to state Rep. Kyle Koehler, R-Springfield, from Ohio Legislative Service Commission attorney Amanda George Goodman. Koehler is chairman of the House Agriculture Committee, where Brent first attempted to offer her amendment. The memo only addresses the potential sale of Confederate memorabilia and does not refer to Brent's attempt to also ban possession or display of such items. Goodman wrote that a ban on sales could run afoul of the First Amendment to the U.S.Constitution and a similar provision in the Ohio Constitution because the government arguably is engaging in "viewpoint discrimination." "When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints," Goodman wrote. "Because the government is essentially taking sides in a debate when it engages in viewpoint discrimination, the Supreme Court has held viewpoint-based restrictions to be especially offensive to the First Amendment. Those restrictions are treated as presumptively unconstitutional."