On The Front Lines
VICTORY: Sporting Good Store Owners Can Fly ‘Dont Tread on Me’ Flag Without Fear of Fines, Fla. City Officials to Amend Ordinance Accordingly
OCALA, Fla. — In a resounding victory for the First Amendment, the City of Ocala, Fla., has affirmed that it will no longer object to a “Dont Tread On Me” flag displayed in front of a local sporting goods store. Ocala officials reversed their stance after being informed by attorneys for The Rutherford Institute that their flag ordinance policy and notice of violation to small business owners Keith and Hannah Greenberg constituted a content-based restriction on speech that patently violates the First Amendment. Ocala officials have also announced their intention to amend the ordinance, which bans most flags except those of the United States and State of Florida, in order to bring it in line with constitutional standards. The Greenbergs plan to resume flying the “Dont Tread On Me” flag in front of The Gear Barrel.
“Living in a constitutional republic means that each person has the right to take a stand for what they think is right, whether that means marching outside the halls of government, wearing clothing with provocative statements, simply holding up a sign or flying a flag in front of their home or business,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “These kinds of cases speak to the citizenry’s right to express their concerns about their government to their government, in a time, place and manner best suited to ensuring that those concerns are heard. That’s what the First Amendment is all about, and I’m glad to see that the City of Ocala recognizes the value of this vital freedom.”
Keith and Hannah Greenberg lease property on Northeast 3rd Street in Ocala, Fla., and operate The Gear Barrel, a sporting goods store. In July 2014, the Greenbergs hung on a pole outside their store the “Gadsden Flag,” which depicts a yellow field bearing the image of a coiled snake and the words “Dont Tread on Me.” The Gadsden Flag was designed and used during the Revolutionary War and has been adopted recently as a popular symbol of discontent with the government. In September 2014, the Greenbergs received a letter from the City informing them that their property was in violation of the City’s sign ordinances and demanding that they cure the violation. Believing the notice related to another display at the property, the Greenbergs removed that display and Keith Greenberg called the City’s Code Enforcement Officer to advise him that the display had been removed. At that time, the Code Enforcement Officer told Keith that the outside display of the Gadsden Flag was also prohibited and that flag must also be removed. Keith was also told that flying a United States flag was not prohibited. Keith told the officer his liberty entitled him to fly the Gadsden Flag and he would not remove the flag. Thereafter, the City sent a Notice of Violation to the Greenbergs and their landlord demanding removal of the flag and informing them that they could be fined up to $500 per day for repeat violations. After consulting with their landlord, the Greenbergs removed the flag from outside the store in order to avoid the steep penalties threatened by the City.
In coming to the defense of the Greenbergs, attorneys for The Rutherford Institute demanded that the City’s threat to prosecute the couple be withdrawn. Institute attorneys also pointed out that the provisions of the City’s ordinances allowing only governmental and religious flags is patently in violation of the First Amendment because speech is permitted on the basis of the content of the speech. Affiliate attorney Robert A. McGlynn, Jr., P.A. assisted The Rutherford Institute in its defense of the Greenbergs’ First Amendment rights.
