The Arlington Heights Memorial Library Board voted 4-2 Tuesday night May 17, 2022 to approve a flag policy that permits a Pride flag (rainbow flag) to be displayed on the single flag pole in front of the library along Dunton Avenue between the main entrance and Euclid Avenue. According to a recent Supreme Court decision on May 2, 2022, the proper application of the new flag policy in order to avoid First Amendment rights violations depends on whether the library can isolate flag displays as actions and issues of government speech and not private speech.
The Arlington Heights Memorial flag policy, which was not reviewed by an advising attorney, would permit any flag chosen by the library board “as an expression of the library’s mission, values or official sentiments” in addition to the US flag, the official State of Illinois flag, and the official Village of Arlington Heights flag. The intent of the policy is to provide that the selected flags serve as a government forum for expression of the library’s mission, values or official sentiments, rather than an open forum for the public. A forum is defined as place, meeting or medium where ideas and views on a particular issue are exchanged. There was no clarification of what parties would be exchanging ideas if the flag policy involves a government forum rather than an open forum involving the public. Is it a forum from trustee to trustee, library to library, library to county, library to state? Just how does the public benefit if it is not allowed to be in the forum? Does Joe citizen just sit and accept whatever the library spews out with their values and official sentiments disguised as a government forum?
The board did not present a list of acceptable flags that serve as a forum of expression of the library’s mission, but Trustee Debbie Smart said this flag proposal is a start of something wonderful.
“It’s time for us to be leaders again in this community and not be fearful of ‘what if’ but be grateful for ‘what is’.”
— Arlington Heights Memorial Library Trustee Debbie Smart
As in, what flag are you waving in Joe citizen’s face this month? And why can’t Joe citizen provide any feedback. Oh, because the flag involves government speech. What?
“Policy is good, policy is protective, until it is challenged.
It’s good until it’s not.”
— Arlington Heights Memorial Library Vice President/Secretary Carole Medal
Regarding ‘What If’
The possibility of a legal quagmire exists since the library board members are elected by voting constituents, and are responsible as stewards to those constituents. A plaintiff could bring a lawsuit and try to establish that there may be select constituents who are getting their private speech endorsed by library government speech by proxy by influencing their elected officials. The library could then be dragged into court if a particular ignored group files a lawsuit with a complaint that their First Amendment rights were violated because the board was being controlled by proxy by favored or select constituent ideologies. How could the library board defend their policy of delivering government speech and prove it is not being influenced by private constituents when the purpose of the board is to serve constituents? If a plaintiff can prove the library was influenced by a private citizen or private group, government speech could be considered null, which could open the door for First Amendment rights violations.
In another legal twist, the library could be sued by constituents attempting to prove that the library board is indoctrinating the public on what ideas and ideologies are permitted or not permitted on library (government) property — another First Amendment rights violation. The Arlington Heights Memorial Library’s flag choice by “expression of the library’s mission, values or official sentiments” could be interpreted as an attempt at government indoctrination. Plaintiffs might ask who and what gives the governmental library board the right to decide what the public is allowed to experience while being subjected to influence or prohibited from influence along Dunton Avenue on government property.
In a controversy over library control of information, officials of the Llano County Library (Texas) were sued April 25, 2022 in the United States District Court for the Western District of Texas San Antonio Division for removing books on race and sex education. The lawsuit states that libraries are “more than a gathering space for topical lectures, group meetings, and crafting projects (because), Llano County’s public libraries provide Plaintiffs and other community members with a quiet and contemplative space to explore the marketplace of ideas and pursue the knowledge contained within the books on library shelves. Though Plaintiffs differ in their ages, professions, and individual religious and political beliefs, they are fiercely united in their love for reading public library books and in their belief that the government cannot dictate which books they can and cannot read.”
Likewise, a local plaintiff or group of plaintiffs might argue that the Arlington Heights library board members should not have the power to decide what flags can be seen or unseen in front of the library. Time will tell whether the library’s effort to protect itself from First Amendment rights violations liability with the establishment of its government speech stance, backfires with complaints of violations of First Amendment rights by government indoctrination. When the library board decides what is acceptable, a plaintiff could complain the library is in the process of teaching citizens or groups to accept a set of beliefs uncritically — government speech without interaction. Trustee Debbie Smart’s values might not be Joe Citizen’s values. Without interaction and discourse, you have division.
“Public libraries are not places of government indoctrination. They are not places where the people in power can dictate what their citizens are permitted to read about and learn. When government actors target public library books because they disagree with and intend to suppress the ideas contained within them, it jeopardizes the freedoms of everyone.”
Arlington Heights Memorial Library Vice President/Secretary Carole Medal said that populations are better served by collections, programs, classes, exhibits and displays, and “flags don’t do it.”
Arlington Heights Memorial Library Trustee John Supplitt provided a lengthy statement that was often critical of the flag policy, including saying that expanding the library’s forum to the flag pole would be a poor and unnecessary use of library time and resources. He also said, this is a motion on a policy not a resolution on the floor to use the flag pole as a public forum, and make no mistake, the law says the flag pole IS a public forum, and policy does not supercede the law.” Supplitt added, “this is undeniable and it cannot be dismissed or nuanced by language contained within a library resolution that would include an extensive legal and administrative process that likely would end the (?) consensus and incur increasing division and animosity. It is your flag today; it’s someone else’s tomorrow. If this board moves forward with this policy and its resolution, we’ve opened the door by setting a precedent for future boards to do precisely the same thing in a matter that aligns with THEIR vision, mission, and values. I support flying ONLY, and without exception, the flag of the United States, the State of Illinois, and that of the public organization where the pole is located.” Among these statements, John Supplitt spoke for over eight minutes pointing out the proposed flag policy’s shortcomings and then voted in favor of the flag policy after Trustee Debbie Smart read the Glenview library’s proposed policy, and agreed to amend her proposed policy with some substitution from the Glenview policy.
Trustee Debbie Smart read the Glenview Library flag policy, emphasizing that the Glenview flagpoles fly flags chosen by the library and that the flagpoles are not intended to serve as a forum of free expression by the public; instead the flags are flown on the library flagpoles selected by the library and will serve as a government forum — and this is the key, said Smart — for the expression of the library’s missions, core values, and official sentiments as recognized by the Supreme Court decision in Shurtleff v. City of Boston [PDF]. It remains to be seen if the government speech stance will protect the Arlington Heights Memorial Library from the liability of First Amendment rights violations.
In the Boston case, decided May 2, 2022, the Supreme Court unanimously ruled that the City of Boston violated the First Amendment rights of a conservative activist, Harold Shurtleff, by denying the flying of a Christian flag on a flagpole outside City Hall.
Justice Stephen Breyer wrote for the Supreme Court, stating that the city discriminated against the activist, Harold Shurtleff, because of his “religious viewpoint,” even though it had routinely approved applications for the use of one of the three flagpoles outside City Hall that fly the US flag, the State of Massachusetts flag, and the Boston flag. On occasion the City of Boston would take down the city flag and raise another flag. Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 such ceremonies. Most of these flags were other countries’, but some were associated with groups or causes, such as the Pride Flag, a banner honoring emergency medical service workers, and others.
The District Court had previously held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse petitioners’ request without running afoul of the First Amendment. This is why Trustee Smart’s policy emphasizes flag flying for the expression of the library’s missions, core values, and official sentiments — as government speech.
In the Syllabus of Shurtleff v. Boston, the Supreme Court wrote that the boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In those situations, the Court conducts a holistic inquiry to determine whether the government intends to speak for itself or, rather, to regulate private expression.
Trustee Debbie Smart may have blurred the line when she said, “we received many emails from our community, of who we’re supposed to represent, in the affirmative for the Gay Pride flag.” This would indicate that the library is dealing with speech issues on behalf of private citizens, not government speech. The library would then be amplifying the speech of select private citizens by raising the Gay Pride flag that those select citizens desire. That’s not exactly government speech. A plaintiff might even complain that majority rule does not define government speech.
On the other hand, in the Supreme Court ruling, Breyer wrote that “the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech — though nothing prevents Boston from changing its policies going forward.”
A government entity could be damned if it does, and damned if it doesn’t. In other words, if a government entity produces government speech based on feedback from private citizens or private groups, it is damned because it now has to accommodate all reasonable private citizens or private groups fairly. If the government entity takes a hands-off approach and allows private citizens and groups to fly their flags without any involvement of the government, then the flagpoles are not used for government speech at all. The flagpoles are more of a town square application on government property and protected by the First Amendment.
The controversy begs the question, “What concepts in flags might support safe government speech in the United States?”
United We Stand, Divided We Fall?
Pursuit of Happiness?
Freedom of Thought?
Freedom of Speech?
Freedom of the Press?
Freedom to Assemble?
Feeding the Poor?
Caring for the Weak or Physically Challenged?
Caring for the Elderly?
There are multiple types of Pride flags, too. Who decides which Pride flag is the correct flag to fly. Apparently, the library board thinks government speech decides. Which one do you fly? Is there a Pride flag out there that is inclusive for heterosexuals along with LGBTQ+ population? Is the Gay Pride flag really inclusive? Is there an LGBTQH+ flag? That would be ‘H’ for Heterosexual. That would be really inclusive. If you want inclusivity, why is there a flag that divides LGBTQ+ from H?
You like rainbows? A lot of people love rainbows. But some people might say, “why can’t heterosexuals and their heterosexual friends be included on the Pride flag? Why can’t we all be proud? Why does the Pride flag only represent a segment or part of the LGBT community or part of the overall community? Excluded heterosexuals might say, “because the Pride flag is divisive.” But actually it might not be divisive on a street where gay pride is being celebrated when private citizens are involved. But it can be divisive to some when it’s government speech that excludes heterosexuals from the celebration at your tax-funded governmental local library.
The Arlington Heights Park District district figured it out … for the holidays they have a Christian manger with Jesus Christ, a Jewish Menorah, a dreidel, a Christmas Tree (“holiday tree”), Christmas symbols, Santa and secular holiday symbols, an atheist banner, and a Kwanzaa symbol and banner.
Following the Arlington Heights Memorial Library board vote in favor of the flag policy, Trustee Carole Medal said the vote was not right because the board voted on the flag policy without the review of an attorney. Medal said “that’s what we have an attorney for.”
Votes 4-2 in favor of the flag policy proposed by Trustee Debbie Smart
Trustee Sara Galla – Yes
Vice President/Secretary Carole Medal – No
Trustee Debbie Smart Yes
Trustee Amy Somary – Yes
Treasurer John Supplitt – Yes
President Greg Zyck – No
Absent: Trustee Andi Ruhl
VIDEO OF ARLINGTON HEIGHTS MEMORIAL LIBRARY FLAG POLICY BOARD MEETING, MAY 17, 2022 BELOW ADS
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Arlington Heights Memorial Library Board of Library Trustees meeting – May 17, 2022 (Note: Initially the YouTube title posted by the Arlington Heights Memorial Library incorrectly posted the meeting date as June 17, 2022, but the title has been corrected). YouTube Tips ⓘ