Screenshot Evanston Corporation Counsel Kelley Gandurski. at the Aug. 3 Human Services Committee meeting.
Screenshot Evanston Corporation Counsel Kelley Gandurski. at the Aug. 3 Human Services Committee meeting.

Evanston might bump up against First Amendment freedom of speech issues in developing legislation to ban actions in the future similar to one last week when a beach-goer hung a towel bearing the stars and bars (the Confederate flag) on a fence at Lighthouse Beach.

But the City does have laws on the books right now that officials might be able to use against such acts, members of the City Council’s Human Services Committee were told at their Aug. 3 meeting.

Ald. Robin Rue Simmons, 5th Ward, asked the Committee to discuss the issue after the Lighthouse Beach incident on July 29.

Evanston resident LaShandra Smith-Rayfield had confronted a group of visitors, one of whom had draped the flag/towel over a fence at the beach.

Ms. Smith-Rayfield  later posted a video, which went viral, showing her confronting the group as some others walked past the display. On July 31, she was joined by other Evanston residents at the beach in a rally for racial justice.

In light of this, Kelley Gandurski, the City’s Corporation Counsel, was asked to look at what other municipalities have done in terms of prohibiting symbols that “may depict prejudice, hate, racism – all of these things that Evanston is just not about,” said Ms. Gandurski, addressing the Committee Aug. 3.

Ms. Gandurski told Committee members that the Constitution typically protects free speech regardless of the content.

But there have been cases, Ms.Gandurski said, where courts have upheld city ordinances that limit content that might be deemed offensive.

“But what the Supreme Court has mostly said is, those prohibitions have to come with conduct where there's an imminent threat of harm.”

A municipality, then, may pass a resolution that declares that “someone will not hang one of these symbols of prejudice on our City facilities,” she said. “But limiting symbols and speech across the board is typically not upheld unless it comes with some sort of conduct that's happening with an imminent threat.”

In any such actions, she told Council “we really would have to look at, again, the specific objective of what the Council seeks to do. Because if you make it too broad, we will open ourselves to federal lawsuits and First Amendment challenges and temporary restraining orders as a prohibition of free speech.”

Responding, Ald. Rue Simmons said she understood the freedom-of-speech argument.

“But can we not make a statement as a municipal government? Obviously, that flag is in complete contradiction to all of our values here that we've stated in the City of Evanston,” she said.

Along those lines, Alderman Peter Braithwaite, 2nd Ward, asked whether legislation could be drafted, differentiating from positive uses of free speech, such as “Black Lives Matter. “

“We know the history of the Confederate flag,” he said “It is indisputable. No one can say, you know, ‘It's my opinion what this flag stand for.’ It stands for what it stands for. We know what its purpose was.”

Ms. Gandurski indicated the answer to that question may require some additional brainstorming and looking at what other municipalities have done.

But on one level that may not be necessary, she said, “because I think the law already protects Evanston in a sense, where if someone is doing this to incite harm, then then yes, the City can step in and stop the conduct.”

In addition, the City has ordinances in effect already where for instance, citizens could not hang clothing over a City sawhorse used to block traffic, or paint a mural without a permit, she noted.

Further, “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, instead [in the form] of an equally powerful positive message,” she said to Committee members.

“And I think that's really important because I think, you know, what, what our current Institutions based on is the expression of ideas. And we saw that the community did not stand for that. And I think it's important to note that, you know, that speech [by community members] was powerful that day in an equal and opposite manner.”

In the Lighthouse Beach incident, Ald. Simmons noted, the Confederate flag was draped over a fence at the beach for some time, before Ms. Smith-Rayfield was able “collect her kids and come from the south side of the City,” all the time with staff on the scene.

“So this might be an opportunity, if nothing else,” she said to officials, “to let our staff know, even if they're seasonal or part time, that what our policy is for hanging things on fences.”

Beyond that, she said, the City should draw up a statement on not supporting such displays in its facilities,” requesting that staff craft the language and bring back the statement to the Committee.