On The Front Lines
Rutherford Institute Calls on Fluvanna Officials to Stop Censoring Businesses, Respect First Amendment Right to Display Flags
PALMYRA, Va. — Defending the right of businesses to engage in free speech, The Rutherford Institute has asked Fluvanna (Va.) County officials to remove restrictions on the kind of flags that can be flown within the County, asserting that the restrictions against so-called “moving signs” violate the First Amendment’s guarantee to freedom of speech. Institute attorneys argue that the County is engaging in content discrimination by enforcing a sign ordinance that allows traditional flags bearing the symbol of a state or nation while forbidding other flags because they constitute “moving signs.” The Institute weighed in on the matter at the request of two business owners along State Route 53 whose businesses have been forbidden from flying flags indicating the business is “open” or advertising the business if other flags are allowed to be flown.
The Rutherford Institute’s letter to Fluvanna County officials is available here.
“For government officials to discriminate against First Amendment activities based solely upon the content of the speech in question is a grotesque violation of our constitutional right to free expression,” said John W. Whitehead, president of The Rutherford Institute. “Such censorship has no place in a free society. Moreover, at a time when businesses are already hurting financially, it would seem to be in everyone’s best interests to ensure that they are able to promote their services.”
In December 2008, Fluvanna County adopted comprehensive regulations upon the erection and display of signs within the County. In April 2011, Debra Kurre, the owner of commercial property along Thomas Jefferson Parkway, received a notice that her property was in violation of the County’s sign regulations relating to “moving signs” based upon the presence of two multicolored flags on the property. In response, Kurre subsequently had the flags removed. Likewise, David Merriman, a tenant on Kurre’s property, also removed a “Farmers Insurance” flag he flew to publicize the insurance services he provides. When asked why the flags were forbidden, the County’s Planning Director explained to Kurre that “flags” are considered “signs” under the broad scope of the County’s sign regulations. Additionally, Kurre was informed that “traditional flags,” such as the official banner of a state or nation decorated with emblems or images that symbolize that state or nation, are considered public signs and exempt from the restriction on moving signs.
In weighing in on the matter, attorneys for The Rutherford Institute point out that by allowing “traditional” flags but forbidding other flags, such as those containing commercial messages, the County’s sign regulations are content-based and subject to strict scrutiny under the First Amendment. “Even if the restriction on flags is intended to further local interests in traffic safety and aesthetics, these are not compelling governmental interests which allow a content-based regulation of expression to survive strict scrutiny,” Institute attorneys stated. Additionally, limiting the restriction to non-traditional flags is not “narrowly tailored” to achieve those interests because non-traditional flags cause no greater distraction or aesthetic problems than “traditional” flags. The Institute’s letter to the interim county administrator cites court decisions from other jurisdictions holding that local ordinances which distinguish between and favor non-commercial flags over commercial flags are unconstitutional.
