Marshall H. Tanick, BridgeTower Media Newswires
“We’ll rally round the flag, boys, we’ll rally round the flag ...”
—George F. Root,
The Battle Cry of Freedom (1863)
A concurrent couple of cases decided by the Minnesota Court of Appeals and U.S. Supreme Court in early May concerned flags. While the former attracted a great deal of attention, the latter was largely unnoticed, obscured later that same day by the premature leak of a draft of the abortion rights ruling in Dobbs v. Women’s Health Organization, No. 19-1392.
Neither case involved the American flag, which is usually at the core of flag-related litigation. E.g., Elk Grove Unified Sch. District v. Nedow, 542 U.S. 1 (2004) (non-custodial parent lacks standing to challenge child’s school-mandated” pledge of allegiance); Texas v. Johnson, 491 U.S. 397 (1989) (flag desecration law unconstitutional).
Both cases shared some other similarities as well. Both involved prohibitions on flag flying challenged under the freedom of expression provision of the First Amendment. In each case, the flag-flying claimant prevailed in unanimous rulings by the respective tribunals.
The 137th commemoration of Flag Day today provides an opportune occasion to review some of the law and lore of flag litigation.
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Buffalo & Boston battles
The pair of current cases, both decided May 2, arose in Buffalo, Minnesota, and Boston, Massachusetts.
The battle in Buffalo was resolved in favor of the owner of a huge flag supporting President Trump. The 30-foot by 50-foot banner stating: “TRUMP 2020: Keep America Great” was deemed to be violative of an ordinance in Wright County because of its size and lack of permit, resulting in a $600 fine imposed upon the owner of the commercial property where it flew.
But the Minnesota Court of Appeals overturned the sanction in Johnsonville, LLC v. City of Buffalo, 2022 WL 1297835 (Minn. Ct. App. May2, 2022) (Unpublished). The panel, in a decision written by Judge Sarah Wheelock, reasoned that the proportion transgressed the First Amendment as an impermissible “content-based“ regulation “since certain other signs” concerning different issues and subjects were allowed on commercial sites.
The Boston brouhaha arose out of the refusal of the capital city in Massachusetts to allow a religious-oriented group to fly a flag reflecting a Christian cross in a municipal plaza in front of City Hall, where other banners were permitted. While the case was embedded with religious freedom issues, the court, in a decision written by Justice Stephen Breyer in Shurtleff v. City of Boston, 142 S.Ct. 1583 (May 2, 2022) deemed the prohibition violative of freedom of expression because its prohibition of the flag “based on its religious viewpoint” violated the free speech clause of the First Amendment.
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Ventura’s veto
Twenty years ago, as the 2002 legislative session was drawing to a close in the first year of Gov. Jesse Ventura’s single term, the Minnesota Legislature passed a measure requiring public school teachers to require students to recite the Pledge of Allegiance in class.
A libertarian, the governor vetoed the measures, pointing to its “under God” provision that may be offensive to some students or their parents on religious grounds. The Legislature adjourned without attempting to override Ventura’s veto.
Had they done so, the legislation may have attracted litigation but may have been upheld if coupled with opt-outs for objecting students or parents because similar measures have been upheld in a variety of situations despite First Amendment religious challenges.
If the legislation had gone into effect, it would not have been the only state flag statute. Minn. Stat § 197.987, known as the “Honor and Remember Flag” law, consists of a symbolic statement that the flag reflects the state’s “concern and commitment to honoring and remembering” deceased military service members and states that government facilities are “encouraged” to fly it on particular holidays, and other commemorative occasions, including Flag Day.
Meanwhile, state legislators this year were looking at a proposal to change in the Minnesota state flag, dating back to 1895. The contemplated modification, which did not make it through the legislative process but may arise next year, is aimed at reflecting greater diversity and eliminate what some view as the anti- Native American discriminatory impact of the current banner.
Flag Day presents a time to commemorate an occasion to honor the symbol of the country. It also is a reminder of the past and present legal controversies that have swirled around the Stars and Stripes.
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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
