On The Front Lines
Rutherford Institute Defends Right of Maryland Family to Fly American Flag in Traffic Circle, Dismisses State Highway Administration’s Safety Concerns
BALTIMORE, Md. — The Rutherford Institute has come to the defense of a Maryland family whose American flag honoring the military was removed from the grassy median of a traffic circle by officials with the Maryland State Highway Administration (SHA). The Winkler family erected the flag in the traffic circle three years ago as a way of paying tribute to members of the Woodbine community serving in the U.S. military overseas and of welcoming home returning service people. In calling on the SHA to either re-install the flag or grant the Winkler family a permit to do so, Institute attorneys point out that the flag has not been a cause for concern, safety or otherwise, over the course of the three years it has flown in the circle.
The Institute’s letter to the Maryland State Highway Administration is available here.
“Our analysis of the situation leads us to believe that should the Winklers choose to pursue a legal challenge over their right to display an American flag in the grassy median, they have a number of strong arguments in their favor,” said John W. Whitehead, president of The Rutherford Institute. “State Highway Administration officials have already publicly acknowledged that a statewide solution for allowing the display of flags on medians is needed and that they would welcome the opportunity to support the community’s desire to honor our troops. It’s our hope that the SHA will put this matter to rest and restore its good standing with the people of Woodbine by respecting the Winkler family’s First Amendment right to fly the American flag on land that is tantamount to a public park.”
The Winkler family erected the American flag in the traffic circle three years ago as a way of paying tribute to members of the Woodbine community serving in the U.S. military overseas and of welcoming home returning service people. The flag has been flown from that circle ever since, replaced periodically with a new flag provided by the American Legion Gold Star Post 191 in Mount Airy. However, in December 2011, road crews with the Maryland State Highway Administration (SHA) removed the flag and the flag pole. Justifying its actions, the SHA stated that the flag “posed a safety threat to motorists,” “was installed without permit” and “constituted trespassing on state property.” Asked by the Winkler family to intervene in the matter, attorneys for The Rutherford Institute have alerted the SHA to the fact that the members of the Woodbine community are committed to maintaining a patriotic display at this location as long as Americans are fighting overseas and that such displays are clearly protected by the First Amendment to the United States Constitution. The SHA has also been asked to assume the nominal maintenance and oversight responsibilities for re-installing the flag in the median of the roundabout or else grant the Winkler family the permit allegedly required. Pointing out that since the flag flew undisturbed for three years without being a cause for concern, safety or otherwise, and without raising the ire of the SHA, which had to be aware of its presence, Institute attorneys have dismissed the SHA’s stated reasons for removing the flag as convenient posturing. In their legal analysis, Institute attorneys argue that not only does the burden rest with the SHA to prove their safety concerns, but by suggesting that the acquisition of a permit would have made the display of the flag acceptable, the SHA has essentially acknowledged the grassy median to be a forum, which renders it a space for protected expression under the First Amendment.
