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Leland won't fine flag flyer for now

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LELAND, NC (WWAY) -- An update on that flag flap in Leland. The Buy n Go gas station got a letter from the town saying the business will not be fined for flying a large American flag for now. The letter comes after the town issued a notice of violation to the gas station saying the flag is too big according to town ordinances.

The town will address the flag issue at a planning meeting in June and council meeting in July.

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political expression cannot be contracted away in areas within y

III. First Amendment Rights: Freedom of Expression The statutory language used in the Freedom to Display the American Flag Act of 2005, as applied to homeowners associations, is consistent with the language of First Amendment cases involving government regulation of speech in public and publicly accessible places, including sidewalks, streets, and public parks. This choice of language is significant because it essentially transposes the protections of individuals against government interference under the First Amendment to the protections of individuals against interference from private actors.
First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

1st Amendment, U.S. Bill of Rights, U.S. Constitution

• 1st Amendment Content-Based Restrictions - More Favorable Treatment for the U.S. Flag

Significantly, the Freedom to Display the American Flag Act of 2005 advances the important government interest of patriotism but applies more favorable treatment for the display of the U.S. flag as compared to the display of other flags. This regulation of content-specific speech, specifically favoring the U.S. flag, can be regulated either in the affirmative right to display the flag or in a prohibition, such as the inability to display the flag. Generally, content-based restrictions are subject to strict scrutiny by which the burden would be on the government, or similarly in this case on the homeowners association, to show that any restriction on speech was necessary to achieve the compelling governmental interest. In U.S. v. Eichman, 496 U.S. 310 (1990), the Supreme Court struck down the Flag Protection Act of 1989 prohibiting the destruction of the U.S. flag (flag burning) as unconstitutional because the law contained an implicit content-based limitation on the scope of prohibited conduct and thus unlawfully suppressed speech. The court explained that it violated the First Amendment because the law applied specifically to the U.S. flag, not all flags.

Consider a homeowners association rule that allows only the U.S. flag to be flown. Notably, the Freedom to Display the American Flag Act of 2005 does not address state flags, military flags, P.O.W. flags, foreign flags, etc. Accordingly, open questions include whether homeowners regulations pursuant to federal law can restrict lawfully the flag displays solely to the U.S. flag but not other flags; only the current 50-star U.S. flag but not non-50 stars flags; the U.S. flag and foreign country flags but not state flags; or the U.S. flag and state flags but not military or POW flags, etc. For POW/MIA flags, see the discussion below about what the law means for individuals.

• 1st Amendment Content-Neutral Restrictions - Time, Manner, and Place
In contrast to strict scrutiny analysis applied to content-based restrictions, courts have upheld content-neutral speech regulations under an intermediate scrutiny analysis (similar but distinct from the intermediate analysis used for laws and regulations related to gender and illegitimacy) upon a showing that they advance an important interest unrelated to the suppression of speech, do not burden substantially more speech than necessary to further the important interest, and apply in a nondiscriminatory manner. Even greater leeway is granted to regulations that restrict the "time, place, and manner." Such restrictions generally are found to be valid when they are narrowly tailored to achieve an important interest. The regulation will not be upheld where it is overbroad or overly vague. Thus, the business bears the burden of demonstrating overbreadth or vagueness.

Symbolic Political Speech as "Protected Speech"
Should flying the U.S. flag receive special consideration as protected political speech? In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court upheld the right of public school students to wear black armbands in protest of the Vietnam War because it constituted protected speech and did not substantially interfere with school discipline or the rights of others. Following that analysis, private citizens should be able to fly the flag as long as the flag does not substantially interfere with the use and enjoyment of public areas. Thus, a flag that extends beyond the areas of one's exclusive use and control could be regulated when it substantially interferes with another's use.

What Does This Mean for Individuals
First, you also should check to see if your state has adopted legislation. Several states recently enacted legislation consistent with the federal law.

What about my First Amendment rights and freedom of speech? Historically, the First Amendment protects you against interference from the government. In a 2007 case involving the posting of political signs in a 10,000 member planned community governed by a non-profit homeowners association, the New Jersey Supreme Court held that: (a) Twin Rivers was a private community, (b) the public was not invited to use the property, (c) the plaintiffs voluntarily entered into private contracts granting the association the right to enact rules, and (d) the plaintiffs freedom of expression and expressive activities were not unreasonably restricted by a rule that required one sign per window. Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Ass'n, 929 A.2d 1060 (N.J. 2007). Significantly, the decision in Twin Rivers relied on the "time, manner, and place" analysis and did not preclude a future challenge based on First Amendment rights against the homeowners association: "Our holding does not suggest, however, that residents of a homeowner association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights." The court also advised that homeowners have other legal protections, such as those under business and agency relationships. Thus, the court suggested that prospective plaintiffs consider claims based on breach of fiduciary duty; arbitrary decision-making; and "fraudulent, self-dealing or unconscionable" actions when adopting restrictions.

Your first line of action should be local. If your town imposes such restrictions, get involved in getting the restrictions overturned or modified. Remember, as a citizen you have a voice in how rules are made, passed, promulgated, and modified. If you would like to test the waters and challenge the restrictions in court, you could argue that your right to political expression cannot be contracted away in areas within your exclusive use and control. You also could lobby your elected state and federal representatives for guidance.

Flag desecration

My friend, over on Oak Island you do not have a case of desecration. After 21 years in the military, I can tell you this for I have seen true desecration. Desercration to my flag, my Country, and the uniform I wore. What Mr. Perry is doing was acctualy taught to us in the Army and is defined as"Flags may simply be used unconventionally: they may be hung upside down or reversed (in some countries,this is also conventional protocol to indicate a problem)." Would you rather he burn it? I know I would'nt.

The American flag is in no

The American flag is in no way disgraced by flying it upside down at American Fish Co. If you had any knowledge of such, you would know that this is a maritime signal for distress. And, my friend, there is plenty of distress in the US these days. This is all the owner is trying to say.

American Flag

Good job Leland....We should be able to fly any size AMERICAN FLAG AS WE WANT...This is America home of the free and the brave.

American Flag...and american fish co.

I cannot believe that this is even an issue, especially at a time where we AMERICANS need to stand strong. Our flag is full of history and pride. We should fly it no matter how large.

On a different note, I want to mention that on Oak Island there is a flag flying upside down and they have the balls to name the business "American Fish Company". They have it boosted up on a crane so it is visible as you travel over the Oak Island Bridge. This is more of a disgrace than arguing over a flag being too large. No matter what you think of our government there is no reason or excuse to disgrace out flag by flying it upside down. We as American Citizens need to do whatever is necessary to protect and honor our beautiful flag! Fly it small, medium, or BIG...just fly it the proper way and fly it with pride!

And people still ask me why I left

This is exactly why I moved out of Brunswick County. I could not stand the hypocracy anymore, along with the idiotic laws they have. I do believe half the people except the transplants came from the days of deliverance. When did we become a country or town or city or neighborhood, that did not find our flag beautiful. When did we stop being proud of who and what we stood for? We did all this when people stopped caring and stopped exercising their rights to vote. You get what you do not vote for. Look I have nothing against people moving down here from up north; however, stop changing what you moved here for. Obviously you liked us the way we were when you visited...LEAVE IT ALONE! That flag is gorgeous, shame on you Town of Leland for not being proud of who and what you stand for. Or is that it....have you truly become Un-American. I haven't and will fly my colors till the day I die.

Response to "And people still ask . . ."

How the heck were you able to work in the phrase about "people moving down here from up north"??? Like we have ANY influence over how Leland OR Belville enforce THEIR laws! Any excuse to bang on the transplants, I guess! Thanks for the warm welcome, EXBCResident!

Fly it Baby

I say Fly it and be proud. Its sad when someone complains about how big OUR AMERICAN FLAG is, or when some dumb town ordinance is stating its too big. I live in BC and I love to see it every morning to and from work. Its beautiful..so keep it up!!!

flag flying

this goes back to when leland use to have a race track down the street from there,clean fun for the family but don't make any noise!Look now the flag is making to much noise thats just to unamerican for both,so someone needs to roll up there sleeves and start with the real issues not a flag or a race track start dealing with the taxes and the job losses these are the real things that needs attention! stop making waves and let the flag do that for us or move out of the state or counrty for those who are that unamerican!

I can see if it was another

I can see if it was another kind of flag, but the american flag? Come on, Leland town officials are going to get a lot of bad press over this one.

The Flag

Keep flying the flag, and by the way, bigger is better. Your city and your customers should be proud of your flag and support you in displaying it. Rally the people to vote those officials out of office who would appose such a thing. Print up some flyers defending your right to fly this flag and stuff them in the grocery bags along with the receipt. Let others know about this and you will find more support than you thought you had.

Oh please

Bigger is most certainly not better for a flag. Say that and you'll have some dumba** putting up some monster sized flag hanging on their roof or another giant one like this. There is no need to have some huge waste of resources like this. Honestly, the law is the law. FOLLOW it people. I don't need to some a giant eyesore to feel patriotic and for those that do, I think you obviously must not be too horribly patriotic at that since you need a reminder!

You refer to the American Flag as an eyesore?

May I invite you to take the next available aircraft to Iran or Iraq, possibly Cuba or Venezuela? We simply do not need any additional traitors in this country. Your past posts indicate that you are athiest, hate "stinky" children, are homosexual seeking "rights" and NOW, do not respect the flag of your country?

Why don't you go and be "horribly patriotic" in some third world country devoid of human rights where you belong!!! I surely hope the US Armed forces can weed cowards like you out before you have a chance to go against your own.

Absolutely pathetic!!!

hmmm your patriotic?

You are calling the American flag and eyesore and in the same breathe calling yourself patriotic. Talk about contridication. Some dumb*** hanging one on his roof, gee no way your a native. Wish I was your neighbor, I would paint the flag on my lawn, side of my house, and on the roof. Maybe then you would find your so called patriotic side. And before you label me this uneducated dumb*** like you mentioned in your post..I am educated,work, and last time I checked my neck wasn't red.

The color of your neck is obviously a matter of opinion!

Anyone who would paint their roof, house and lawn like a flag obviously has little tact or taste. I have no problem with a NORMAL sized flag, but someone who puts one up that is big enough to be seen from space only wants one thing...attention. Furthermore the law is there for a reason...obey it.

Ja, the law is there for a

Ja, the law is there for a reason... OBEY without QUESTION... Sieg Heil!

Obey any law?

We have a law on the books that bans sodomy, oral sex, and consensual homosexual conduct in North Carolina.

Should we all obey that, too?

Ha ha

Good one Aristotle! Got a great big lol out of that...

As for the original post, please folks - do not feed the troll!

It would take a bunch of

It would take a bunch of IDIOTS to fine anyone for flying the AMERICAN FLAG for any reason other than doing so would put the publics lives at risk.
S/F ROGER FLEMING

Your post makes no sense?

Public lives at risk because of a flag? What in the heck are you talking about?

Flag

The American flag is too big?? Get a larger one and I'll help pay the fines....and I'll start shopping at your store. Vote these guys out so they can move to a place where they can't have a flag! Doc

flag flying

this country is still taking an ugly turn in morale now we got some dummies who are leaders who don't have anything better to do than to pass some dumb flag flying law this is america don't kill what spirit what we have by disallowing people who love this country and want nothing but the best for it to be killed by this STUPID law

waterford flag

There is a similar size flag in front of Waterford stores.

Flag

The problem is that, that one is in Belville and not in Leland. Know your boundries! Go to the store and sign the petition!

AREN'T THERE MORE IMPORTANT

AREN'T THERE MORE IMPORTANT ISUSES TO DEAL WITH IN LELAND?
INSTEAD OF LOOKING UP ,LOOK DOWN AND SEE THE HOMELESS. LOOK AHEAD AND SEE THE CRIME. ARE THERE NO ORDINANCES FOR THOSE THINGS HAS SOCIETY LOST THERE PRIORITIES DOES THE COUNCIL DISCUSS THE STATE OF THE ROADS, THE PARKS, THE SCHOOLS OR IS THIS COUNTRY AS NARROW MINDED AS IT WAS A HUNDRED YEARS AGO IS IT REALLY ABOUT THE SIZE OF THE FLAG? OR THE SIZE OF THE EGOS INVOLVED?

The Flag in Leland

Good! Keep the pressure on these people! This flag is no larger than the one flying at our nation's capital. It is beautiful and deserves to fly.

Ok Enough..

The law is the law for a reason. I want all of you to stop and think if you would be on your soap boxes if that flag were not an American flag (think constutional freedom of speech/expression). Lets stop and say for just a moment that these folks were flying a Nazi flag or a Palestenian flag or a Venzuelan Flag or an Afghani Flag. Would you be so quick to insist that the law be changed to suit them or would you urge the Town of Leland to force them to take it down. What if it were just a great big flag with a twinkie on it, advertising that these folks love twinkies? We have zoning regulations for a reason. I love to see Old Glory flying and appreciate all the outpouring of support and patriotism but here, it is misplaced.

YES

I could not agree more! This is the point in which I am trying to make! Of course here though this brands us as unpatriotic traitors.

Have you ever heard of the freedom of speech

Actually it would be a disgrace to take down anything because of what it said. We all need to remember that America is a melting pot and we are all proud of where we came from in addition to being American.

Courts have traditionally said that you can't regulate content. As far as size and manner you can regulate that but it should be justified by showing it is for safety and for the overall good.