When fans return to NASCAR races, the speedways will be void of Confederate flags flying. At least, in theory.
The sport announced Wednesday its ban on the rebel flag, which has maintained a consistent presence atop trailers parked around speedway infields during NASCAR races for over half a century. The sanctioning body said in a statement that “the display of the confederate flag will be prohibited from all NASCAR events and properties,” a radical move for the premier stock-car racing series whose early history incorporated Confederate symbolism into official events at certain Southern tracks.
“I’m pretty sure that we’ll take really strict measures to not allow this to happen,” driver Bubba Wallace said on the Today Show Thursday when asked about NASCAR’s enforcement plans. “And if it doesn’t, then that will be another conversation that I will have.”
Wallace, the only African-American driver in the Cup Series, has become an advocate for Black Lives Matter and was instrumental in provoking NASCAR’s decision to ban the Confederate flag at races. He said he worked with the sport’s president, Steve Phelps, to make it happen, but he’s unsure how officials are going to pull it off.
He isn’t alone.
As the sport embraces a more inclusive tone, claiming it’s cracking down on what’s seen by many as a symbol of slavery and white supremacy, NASCAR lacks a clear enforcement plan.
In a message to The Observer, NASCAR said it is working with the industry ? meaning the individual racetracks ? to develop protocols around enforcement, but declined to comment on specifics or say whether the ban applies to items beyond flags, such as T-shirts, license plates and bandannas displaying the Confederate flag design often incorrectly referred to as the “Stars and Bars.”
Based on trends around the motorsports industry, as well as a comparable instance last year of Major League Soccer banning political symbolism on flags, it’s a safe bet that there will be some fans who reject the rules. Rebellion is, after all, woven into the fabric of the Confederate flags those fans hoist.
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Before crying foul that NASCAR’s new policy infringes on Constitutional rights, be sure to read the fine print.
When fans buy a ticket to a race, what they’re actually purchasing is a license, said Jonathan Kotler, a media law professor at the University of Southern California.
“The license is usually on the back of a ticket,” said Kotler, who is an attorney. “The licensee ? which is NASCAR ? gets to decide what you can do as a customer.”
For example, a ticket for last year’s NASCAR playoff race at Charlotte Motor Speedway says the venue may refuse admission or eject any person whose conduct is deemed disorderly, or anyone who does not comply with its terms, without a ticket refund.
“Charlotte Motor Speedway reserves the right to add or change these rules,” the ticket reads. “By use of this ticket, (the) holder consents to a reasonable search for alcohol, drugs, or other prohibited items,” which will now include the Confederate flag.
Charlotte Motor Speedway is owned and operated by Speedway Motorsports, Inc., the parent company of eight NASCAR-affiliated tracks, including Atlanta, Bristol, Las Vegas, and Texas. SMI said in a statement that the company and all of its facilities support NASCAR’s recent decision.
“The slogan the speedway was founded upon in 1960 was ‘Charlotte Motor Speedway. … It’s for everyone.’ We will always strive to make our facility welcome to all fans,” SMI said in a statement.
Drivers asked about the presence of the Confederate flag at races, including Denny Hamlin, Joey Logano, Martin Truex Jr. and Tyler Reddick, said they supported NASCAR’s decision. Brad Keselowski, driver of Team Penske’s No. 2 Ford, added that while he does not personally care for the flag, he is also a “rights guy.”
“In general, I like when people have rights to do what they want to do,” Keselowski said. “But it’s ultimately not my decision and I support the fact that it’s NASCAR’s decision.”
Kotler said the First Amendment doesn’t apply to NASCAR telling fans to not bring Confederate flags to races.
“This really isn’t a freedom-of-speech issue, because the First Amendment only really applies to the government,” Kotler said. “NASCAR is a private enterprise, and they can pretty much ban whatever they want to ban as far as speech and conduct and anything like that.”
NASCAR last addressed its Confederate flag policy in 2015 after nine people were murdered by a white supremacist at a historic Black church in Charleston, S.C. The challenge with implementing a wider ban, former NASCAR CEO Brian France told Sports Business Journal on Friday was that neither NASCAR nor SMI own all of the camping properties around some tracks.
“We will be as aggressive as possible to disassociate NASCAR events from an offensive and divisive symbol,” France said in 2015. “We are working with the industry right now to achieve that goal.”
At the time, the flag was barred from being used in any “official position” at events. Now that the policy applies to fans, that doesn’t mean the symbol will be completely eradicated from races.
Kotler said he thinks the ban will be “close to impossible” to enforce.
“People can have Confederate flag t-shirts on, under their regular shirts,” he said. “They can take small flags or banners. Or big ones and fold them up any way they want and then unfold them in a stadium. It will require ushers or private police or other stewards to come in and seize them, which is going to cause a problem with fans, particularly those who have been drinking.
” … It’s going to cause a mess.”
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In fall 2019, a similar instance of policy rebellion occurred among MLS supporter groups after the league clashed with fans over the display of the Iron Front symbol, a circle with three arrows pointing southwest, which originated in anti-Nazi Germany in the 1930s. The symbol was shown on flags and banners, which are typically visible in the supporters sections of soccer matches, but MLS deemed the messaging “political” and banned its presence on flags and banners.
Sheba Rawson is president of the 107IST, the nonprofit behind the Timbers Army supporters group for the Portland Timbers. Following the controversy, she worked with MLS to develop its updated flag policy.
“People had different earrings and hats and patches, all these individual things that were allowed,” said Rawson, discussing how members continued to display the symbol. “They weren’t breaking the rules. They were just finding a way to make a statement.”
“I don’t mean to make light of this historic moment because (the Confederate flag) is universally understood to be a symbol of racism, but the analogy I would make is to dress codes,” added Rawson, who is also an elementary school principal in Portland, Ore. “Let’s say you’re not allowed to wear a certain thing or the rules say that. Well, kids are always going to try to find a way to express themselves or test the rules.”
NASCAR likely needs to figure out rules regarding the flag as early as June 21, when it begins allowing a limited number of fans at its race at Talladega. Beyond enforcement, it needs to determine associated punishment and removal policies for those who do expressly display a Confederate flag on its properties.
In the case of MLS, Rawson said punishments varied based on the subjective nature of the infraction. “First-time offenders were banned for three matches for displaying the symbol on flags and banners,” she said.
The professional soccer league now allows the display of the Iron Front flag at matches after working with supporters groups to revise the wording in the MLS Fan Code of Conduct and clarify the word “political” after proponents argued the symbol was simply meant to convey an anti-fascist and anti-racist message. A similar policy reversal is unlikely to happen in NASCAR, however, as the industry appears adamant in condemning those who aren’t on board with its new direction.
One part-time NASCAR Trucks driver, Ray Ciccarelli, said he would quit the sport due to its new direction and Confederate flag ban.
“He’s insulted more races than he’s won,” tweeted musician Jason Isbell. The tweet received almost 80,000 likes.
Cup Series drivers also recently dropped a longtime helmet design company for posts on social media that criticized Wallace’s Black Lives Matter car paint scheme and NASCAR’s flag policy.
“I’ve never seen anything with the momentum or the pace that we’re seeing right now,” Rawson said of institutions addressing racism. “It is extremely painful and I’m cautiously optimistic that it actually leads to _ it’s not going to fix things _ but if we even make small incremental change, that is slightly less terrible.”
Kotler said the presence of the flag will fall almost entirely on NASCAR and the speedways’ conviction to accept the costs of enforcement.
“If the fans like their Confederate flags, the owners (of NASCAR) will make a kind of virtue signal that they’re doing what they think is the politically correct thing,” Kotler said. “But they’re not going to lift a finger when you try to force it, if the fans don’t want them to.”
While Wallace said he didn’t know exactly how NASCAR will keep Confederate flags from the infield, he also said he wasn’t concerned about the sanctioning body’s ability to do so.
“It’ll be interesting to see,” Wallace said. “There’s a lot of things unfolding for our sport and for our nation, and really for the world, and we’re all kind of piecing it together day-by-day. We’ll just continue to push on and fight for what’s right.”
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