Today, July 4th, is one of the rare days that i am allowed to fly the flag. Last month, ironically two days before national Flag day in the united States, I obtained a notice from my condominium homeowners combination prohibiting occupants from displaying the U.S. Flag indigenous the exterior the our homes except top top a couple of specific days of the year. Before receiving this memo, I, together with a handful of various other residents, regularly displayed little flags from our balconies. Paris the flag where we live seems fitting and also proper because, from our balconies, we deserve to see the Lincoln Memorial, the Washington Monument, and also the U.S Capitol building. Also, the adjacent clock tower, the Netherlands Carillon, plays the Star-Spangled Banner twice a week. My U.S. Flag is 2-feet by 3-feet and also flies from a 4-foot pole, i m sorry I remove at sunset in accordance v the U.S. Flag Code.

Now, i cannot display the U.S. Flag except on legal government holidays. I, however, have the right to hoist a patio umbrella of any type of size, shape, or color on a pole of any type of size on any day that the year, as long as the umbrella does not have a clearly shows U.S. Flag on it. These incongruous rule raise the question:

Can the rights of a citizen to display the U.S. Flag on personal property and also within the person’s exclusive use be restricted?

What follows is my expedition of the liberty to screen the American Flag plot of 2005, the enumerated powers of congress to enact regulation empowering master associations come restrict flag displays, the constraints of individual legal rights under the very first Amendment, the flexibility of people to go into into personal contracts that may restrict their liberty of speech, and what constitutes a legal government holiday.

I. Federal legislation — freedom to display screen the American Flag action of 2005

Under the federal liberty to display the American Flag plot of 2005 happen by the U.S. Congress in 2006 and signed right into law through President shrub on July 24, 2006, homeowners associations throughout the country may no prohibit the displaying the the U.S. Flag, however they have the right to regulate the “time, place, or manner” of screen when “necessary to protect a comprehensive interest” the the condo association. Also, master regulations might not it is in inconsistent v the U.S. Flag Code provided in chapter 1, location 4 of the United states Code.

Rep. Roscoe Bartlett watches as President bush signs the bill into law top top July 24, 2006. Image attached from

Sec 2. Definitions.

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For objectives of this plot – (1) the hatchet ‘flag that the united States’ has actually the an interpretation given the ax ‘flag, standard, colors, or ensign’ under section 3 of title 4, United claims Code;

Sec. 3. Ideal to display the Flag that the unified States A condominium association, cooperative association, or residential real estate monitoring association may no adopt or enforce any kind of policy, or enter into any kind of agreement, that would limit or prevent a member the the combination from displaying the flag of the United says on residential building within the association through respect to which such member has actually a different ownership attention or a appropriate to exclusive possession or use.

Sec. 4. Limitations.Nothing in this plot shall be considered to permit any kind of display or use that is inconsistent v – (1) any provision that chapter 1 of location 4, United claims Code, or any type of rule or practice pertaining come the suitable display or use of the flag the the United states (as established pursuant to such chapter or any type of otherwise applicable supplication of law); or (2) any reasonable restriction pertaining come the time, place, or manner the displaying the flag of the United says necessary to safeguard a substantial interest that the condo association, cooperative association, or residential genuine estate monitoring association.

Public law No. 109-243, July 24, 2006, 120 Stat. 572 (H.R. 42) (emphasis added).

Which members of congress voted because that the invoice is unknown due to the fact that neither the residence of Representatives no one the Senate tape-recorded each member’s position or the variety of members voting. In the House, the invoice passed through voice vote on June 27, 2006. Under home Voting Rules, a voice vote deserve to be happen upon support by 25 that the 435 members and also without a minimum number of supporters. In this case, the invoice was presented by Rep. Roscoe Bartlett indigenous Maryland and supported through thirteen various other members. The bill’s last language was accepted as originally introduced. In the Senate, the bill passed on July 17, 2006 through unanimous voice vote and also without a document of members’ individual votes. Senate vote Rules enable a voice or department vote come be taken into consideration valid even if only a couple of Senators participated: “Until a point of no quorum has actually been raised, the Senate operates on the assumption that a quorum is present, and also even if just a couple of Senators are present, a measure might be passe.” Here, one Senator inquiry on the Senate floor the the invoice be agreed come by unanimous consent. Then, the presiding Chair would have dubbed for the voice vote by saying: “All those in donate say aye, all those opposed say no.” The bill could have to be passed also if a single Senator was the only one in the room and he/she responded, “aye.” The Chair would announce that the ayes appear and do “have it.” The subsequent videotaped vote go not reveal how countless Senators were in the room or how each councilor voted. Thus, the “unanimous consent” theoretically could have been by a sole – and unidentified – Senator.

With early out respect to the 2 members that spoke on the residence floor in assistance of the invoice — Raymond environment-friendly (Democrat-Texas) and Dennis Moore (Democrat-Kansas) — ar 4 eviscerates the heart and influence of their speeches. The invoice does not “guarantee” every homeowner a fundamental right to “display the American flag wherever they live.” If Rep. Moore important felt the “American citizens must not it is in prevented native . . . Increasing the flag ~ above their very own property, even if their residential or commercial property is part of a larger association the properties,” then he should have sought together legal protections in the bill.

As Rep. Bartlett mentioned when he introduced the bill, the goal of the law was not to carry out an unfettered appropriate to screen the flag. The goal to be to discover a compromise in between the ideal of people to display the flag and also the best of master associations “to preserve the value of their properties.” In that sense, section 4 greatly maintains the status quo of master regulations. Associations deserve to restrict the civil liberties of master to display the flag in order to safeguard the “substantial interest” of building values, listed that they perform not i have loaded a finish ban on every flag displays.

Notably, the U.S. Flag password is just advisory on exactly how citizens must treat the flag. That covers advice on which direction to hang the flag, how to hoist and lower the flag, when citizens should cover your hearts in the visibility of the flag, and also an encouragement to citizens to paris the flag every day. Since the Flag code does not require a daily display of the flag, master associations can impose regulations the limit the variety of days that the flag deserve to be displayed and not it is in “inconsistent with” the Flag Code.

Next, let’s think about whether the flexibility to display the American Flag action of 2005 is constitutional and also whether that is legally coherent with respect come the legal rights of the separation, personal, instance under the very first Amendment.

II. Constitutional Challenges and also Governmental Powers

• commerce ClauseThe freedom to screen the American Flag act of 2005 is delicate to a difficulty that Congress short authority to pass such legislation within its enumerated strength under post I that the U.S. Constitution and thus acted unconstitutionally in that is preemption of the homeowners regulations. The strongest dispute for lawyers on Capitol Hill is the the power to authorize master associations to restrict flag screens on exclusive property derives indigenous the business Clause, particularly Congress’ power to regulate tasks substantially affecting interstate business under post 1, section 8. Return the statutory text of the Flag Act consists of no explicit reference to interstate commerce, pragmatic evidence in assistance of Congress’ power under the commerce Clause could include: flag sales across state borders, business from foreign imports that U.S. Flags, or the operation of homeowners associations throughout states. Rep. Bartlett impliedly made the link to interstate business in the bill’s development when he claimed that he presented the bill in response to a request by among the country’s largest manufacturers of flags. Thus, a nexus come interstate business likely would be to solve if the Act would certainly be challenged in court.

• A taking Under the Fifth and also Fourteenth AmendmentsA “takings” dispute attacking the constitutionality the the liberty to display the American Flag action of 2005 might be made under the Fifth and also Fourteenth Amendments however likely would certainly not be successful. Here, if homeowners associations or separation, personal, instance homeowners wanted to loss the law, they could argue that the Flag plot of 2005 unlawfully restricts the appropriate of exclusive actors come contract and thus impermissibly interferes with exclusive property rights, constituting a taking. In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the U.S. Can be fried Court developed the “permanent physical presence test” for regulatory takings. There, the federal government required specific property owners to install cable wires, together a irreversible physical occupation the property. The homeowners sue the private cable agency for trespass and also argued the such governmentally compelled intrusion was a regulatory acquisition requiring compensation under the fifth Amendment and also Fourteenth Amendments of the U.S. Constitution. The Court upheld the constitutionality of the law and established that when the government compels a permanent physical presence, together regulatory action constitutes a taking per se. Here, the respond to argument is that there is no taking since no permanent physical visibility is imposed. Furthermore, homeowners space not completely deprived “all economically beneficial use” the their building under the “total takings test” established in Lucas v. South Carolina coastal Council, 505 U. S. 1003 (1992). Other arguments related come the significant public interest involved or the minimal economic affect would need to overcome the Court’s hold in Loretto and Lingle v. Chevron, 544 U.S. 528 (2005) (rejecting the “substantially advances” traditional in Agins v. City that Tiburon (1980)).

• precedent and Satellite DishesA comparable preemption by the federal federal government of homeowners associations regulations arisen in the 1990s with satellite dishes. There, the FCC promulgated rules and regulations prohibiting homeowners constraints that would interfere with the individual best of master to install, maintain, and also use of tiny satellite antennas and also dishes in locations within the owner’s “exclusive use or possession.” 47 C.F.R. Ar 1.4000 (the rules); see second Report and Order, F.C.C. 98-273 (1998) (adopting rules); section 207 “Restrictions ~ above Over-the-Air reception Devices” that the Telecommunications act of 1996, Pub. L. No. 104-104, 110 Stat. 114. The FCC safeguarded the regulations as a constitutionally lawful practice of authority delegated come the FCC by Congress and in accordance with the business Clause. Initially, the regulations strongly favored the separation, personal, instance homeowner, however the FCC peaceful the limitations over time in response to complaints by master associations. Currently, under the Rules, master associations might impose reasonable “time, manner, and place” limitations when necessary to attend to legitimate and clearly articulated safety or historic preservation issues, noted such restrictions are together narrowly tailored together possible, impose together little burden as possible, and apply in a nondiscriminatory manner to every members the the master association. Courts have held the homeowners associations might impose restrictions related come aesthetic camouflaging and also location as lengthy as the restrictions do not impair clean signal reception or reason discriminatory effects. See, e.g.

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, Lemle Realty Corp. V. Desjardin, 787 N.Y.S.2d 678 (2004) (recognizing the right of master to download a satellite food on a patio or balcony yet not ~ above the roof without prior permission).

• Note: extr challenges, not disputed here, can be brought under the Due procedure Clause and the Equal security Clause. The Contract Clause applies only to state laws, not federal, and also holds that says cannot enact legislation that substantially interferes through existing publicly or exclusive contracts. The court uses a strict scrutiny traditional to public contracts and an intermediate scrutiny standard to personal contracts.

III. Very first Amendment Rights: freedom of Expression

The statutory language used in the flexibility to display screen the American Flag act of 2005, as used to master associations, is constant with the language of first Amendment cases involving government regulation of decided in public and publicly obtainable places, including sidewalks, streets, and public parks. This an option of language is far-reaching because it essentially transposes the protections the individuals versus government interference under the first Amendment come the protections of individuals versus interference indigenous private actors.