Recent news stories report that Indiana and Kentucky state fairs are barring exhibitors from selling or displaying the Confederate battle flag, or products containing that flag; Ohio seems to have done the same, and other fairs are considering it. But such bans violate the First Amendment.
Government-run fairs are “limited public fora,” see Heffron v. ISKCON (1981)), when it comes to the “exhibitors … [who] present their products or views, be they commercial, religious, or political” through the fair. This means the government can impose reasonable content-based restrictions on speech in those places, but not viewpoint-based restrictions. See Christian Legal Society v. Martinez (2010); Cornelius v. NAACP Legal Defense & Educ. Fund (1985). A ban on display or sale of Confederate flag merchandise is based on the viewpoint that many people perceive the Confederate flag to express.
But the Court in Walker reaffirms that even speech on government property can still be private speech, as to which the viewpoint-neutrality rule applies. For instance, the Court noted, “advertising space on city buses” is treated as involving private speech on government property; that was labeled a so-called “nonpublic forum” rather than a “limited public forum,” but the same viewpoint neutrality rule applies here. Fair booths are at least as much traditional places for private speech, even on public property, as are advertisements on buses. What the Court said in Walker about bus advertising — “the messages were located in a context (advertising space) that is traditionally available for private speech” and “the advertising space, in contrast to license plates, bore no indicia that the speech was owned or conveyed by the government” — is at least equally true for booths rented from a state or county fair.
Nor can the state avoid the problem by demanding that exhibitors enter into contracts promising not to display a Confederate flag. The limited public forum and nonpublic forum doctrine provides that the government may only impose reasonable, viewpoint-neutral restrictions. It can’t impose viewpoint-based restrictions, whether by ordinance, rule, or contract. I don’t know whether there are court challenges being planned to the fairs’ restrictions on Confederate flags, but if such challenges are filed, I think they will prevail.
Not only will a challenge to the Confederate flag ban likely prevail, Indiana taxpayers will be out hundreds of thousands of dollars defending an unnecessary lawsuit. It is not sure if the Indiana State Fair officials consulted legal counsel before imposing ban, but they should have. The ban needs to be lifted before next year's fair.