BLM v The United States Flag in Vermont Capitol


The BLM flag is hardly new to Vermont, being displayed at many of its schools for years.  More recently, “BLACK LIVES MATTER” was painted in large yellow letters on State Street in Montpelier, in front of the State Capitol.  Permission for this event was granted quite quickly, through a permit process with the Montpelier City Council.

On June 29, “John Klar for Governor” filed an application with the City of Montpelier to paint an American flag beside the “BLACK LIVES MATTER” painting, opposed with the phrase “LIBERTY AND JUSTICE FOR ALL” in conjunction with a planned Fourth of July celebration at the Vermont State House, and with the express intention of invoking that American creed to come alongside BLM to find common constitutional ground.

Two days later, the event application was denied for shortness of notice, then resubmitted -- it will be heard July 7 at a Montpelier City Council meeting.

One City Councilor, Conor Casey, launched a defamatory tirade against the applicant:

Casey said that while “Liberty and Justice For All” might be a positive message, the mural’s proposed location suggests other motives. “It is saying ‘you know what, that’s how little Black lives matter to us, we need to be included as well,” Casey said. “It’s an example of white people being pretty fragile.” Casey added that he believes the attempt amounts to little more than a publicity stunt.

For a government official to impute motive by “proposed location” (a US flag next to a Fourth of July celebration) is odd enough, but to give it a racist voice that is conjured from Mr. Casey’s toxic oratory (coupled with insinuations of white fragility) is simply out of control. 

But Councilor Casey didn’t stop there -- he already voted no:

"It's a political stunt and I'm not interested in spending any time at council debating whether it's the right way to go or not," City Councilor Conor Casey said. Casey said Liberty and Justice is a fine [sic] principal but he won't be voting in favor of it next week. "Black Lives Matter comes first and foremost and we won't achieve liberty and justice for all until that stands in everybody's mind," Casey said.

This is a public servant, attacking someone he doesn’t know, attributing intentions, motives -- even words -- to a citizen applying for a permit (before the hearing).

Fortunately, Constitutional law is pretty clear about this type of abuse of power.  Government cannot embrace one political party, or religion, or cause, over another.  Having granted BLM a permit, the City cannot Constitutionally deny a competing political claim -- in this case, a depiction of the American flag, and a phrase from the Pledge of Allegiance (radical stuff, that).  In fact, having granted the privilege of public display of a political message by an obviously left-wing, race-related organization, the City Council has opened the door to more extreme applicants than defenders of Constitutional balance.

The same would be true if Montpelier permitted a Planned Parenthood mural or event -- it would have to allow Right to Life.  Anti-gun; pro-Second Amendment.  And so on.  Otherwise, political extremists might employ government and even public property to advance their own side and eclipse the rights of those they oppose, as Councilor Casey seeks to do in this case. 

If the subject application is a political stunt, that of course would be a core protected right subject to the highest protection against government intrusion such as that seen here -- indeed, is BLM’s painting not a “political stunt”?  The whole point is to communicate, even disparate views -- it’s called free speech.

Did the City Council, when it granted BLM’s application nearly overnight, also endorse it’s express messages, such as on its BLM Vermont facebook page?:

How Black folks living with disabilities and different abilities bear the burden of state sponsored Darwinian experiments that attempt to squeeze us into boxes of normality defined by white supremacy, and that is state violence.

Or perhaps it espouses the various positions of BLM Burlington, including:

The purpose of our revolutionary struggle is deconstructing external & internal oppression. We recognize that oppression is rooted in the assertion of dominance and power. We are committed to decolonizing wellness and creating a culture of collective vulnerability & trust.

I expect it was his alarm at these Darwinian experiments being inflicted in the Green Mountains that led Councilor Casey to seek to decolonize wellness by supporting BLM “first and foremost” over the United States Constitution.  (And surely there was no oppression rooted in his assertion of dominance and power!)

In supporting BLM with public funds (and in Vermont, statutorily providing that a BLM representative be a member of various committees), might it matter what precisely is being funded?  BLM has no detailed policy goals to offer. 

Yet this Councilor went much further in his opposition to the American flag and pledge -- he implied motive, displayed overt political bias, and very poor judgment.  If the City Council now rejects the application, the Vermont Courts will apply the United States Constitution to its conduct, and the flag and pledge will be placed in the balance.

They will win.