Resolution Passes Unanimously Without Amendments
Councilmember Lan Diep, Concurring
By a 11–0 margin, the San José City Council reaffirmed today its prior recognition of the Vietnamese Heritage and Freedom Flag as the official flag of the Vietnamese American community in San José. Additionally, the Council also formally opposed the display of the flag of the Socialist Republic of Vietnam on city-owned flagpoles. I join the majority and concur.
To the uninitiated, it may seem odd that the City Council considered this matter at all. Some opponents of the Council’s action have argued that it is not in the purview of a municipality to get involved in foreign affairs. Others have asserted that the Council’s action today infringes on the free speech rights of people sympathetic to the Socialist Republic of Vietnam. These arguments are unpersuasive.
While today’s action by the City Council may reference the flag of the communist state of Vietnam, the resolution itself is strictly domestic in scope and fully within the authority of the City Council. The resolution pertains only to city-owned flagpoles and does not touch upon U.S. — Vietnam relations.
Since our nation’s founding, free speech has been regarded as the most quintessential of American liberties. But while the Constitution protects one’s right to personal expression, it does not guarantee any individual’s right to be heard. Government is not obligated to amplify any individual’s speech, and a government’s expression of support or opposition to a symbol — in this case, the City of San José’s opposition to the flag of the Socialist Republic of Vietnam being flown on City property — does not diminish any individual’s right to express his or her own distinct viewpoint.
Like individuals, government also has a right to its own speech. In opposing the flag of the Socialist Republic of Vietnam from flying on City property, San José is simply expressing its solidarity with the Vietnamese American community, which accounts for ten percent of the City’s population.
Some may point to the fact that city flagpoles are public property and reason that as taxpayers, the public has a right to access those flagpoles to fly any flag they wish. Such a belief would be incompatible with our settled body of law on free speech at public and limited-public forums.
It is accepted that things funded by taxpayer dollars generally belong to the public. This includes sidewalks, public schools, post offices, military bases, and government buildings. But whereas sidewalks are public forums where people may generally express themselves however they wish, public schools, government buildings, and the like are limited-public forums. In the interest of the safety of schoolchildren, the public is not free to enter a public school campus during school hours. In the interest of conducting orderly meetings, City Hall may restrict the size of signs during council meetings. In the same way, it would be chaotic to allow everyone open access to the City’s flagpoles at their whim. Even though the public paid for those flagpoles, the public does not control them. Instead, the City is empowered with the discretion to determine which flags to fly on those flagpoles.
The City of San José is well within its rights to decide that the flag of the Socialist Republic of Vietnam will not fly on City property. This Council has chosen to do so to acknowledge San José’s longstanding relationship with Vietnamese Americans and their contributions to our city.
The Vietnamese American community established itself in San José as early as 1975, after the end of the Vietnam War. Waves of Vietnamese immigrants have come in the 42 years since — first as political refugees, then as sponsored family members of refugees, and most recently as exchange students and individuals seeking to move up the economic ladder.
The first wave of Vietnamese refugees used their newfound freedoms in America to speak out against the totalitarian, one-party rule in Vietnam, on behalf of those living under communism who cannot speak out for themselves. Those who came after knew this about the Vietnamese community in San José and came anyway. Today, the City of San José has the distinction of being home to the largest population of people with Vietnamese descent of any city outside Vietnam. It is important to the Vietnamese community in San José, as well as worldwide, to remind the Socialist Republic of Vietnam that although they can use the machinery of government to oppress and silence their own people, free Vietnamese people who are afforded the basic right of self-determination will never accept the Vietnamese Communist Party as Vietnam’s legitimate leaders deserving of any respect.
The City of San José has had a history of aiding Vietnamese Americans in this effort. In 2005, the City recognized the flag of the former Republic of South Vietnam — a yellow flag with three red stripes — as the Vietnamese Freedom and Heritage Flag, making it the official symbol of Vietnamese Americans in San José. In 2014, the City passed a resolution declaring its opposition to official visits from representatives of the Socialist Republic of Vietnam and declaring that the City’s Mayor, Council, City Manager, and their agents shall not meet with any government delegation or representative from Vietnam.
In the context of this history, it is unlikely that the City of San José would ever fly the flag of the Socialist Republic of Vietnam on City property, even without the resolution passed today. Despite this, the Vietnamese community expresses its desire for San José to more clearly articulate the status quo and recommit to the relationship between the community and the City. Personal experience has taught me that when someone you care for seeks to define the relationship, it is better in the long run to give them the security they seek if you wish to maintain the relationship.
The Council’s action today is a small but meaningful gesture to express solidarity with San José’s Vietnamese American community and I support it wholeheartedly.
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