From the CBS affiliate in Denver:
I think he’s right. The Freedom to Display the American Flag Act of 2005 specifically says it uses the definition found at 4 USC § 3:
And by the expansive definition of interstate commerce that underlies so many other exercises of Congressional authority, Congress appears to have the power to regulate HOAs.
Am I missing some defense that the HOA might raise here?
I suppose I could attempt to craft a substantive answer but really the only response that seems worth the effort of posting at all is “fuck HOAs.” I mean, seriously, this Brownshirt cell of busybody nationalist fuckheads is telling people what flags they can fly at their own homes? Fucking drop five tons of elephant shit on their community house and call it a day. They don’t deserve anything more than that.
In other words, I agree with your argument, but in the big picture, HOAs shouldn’t be allowed to enforce such a rule regardless of whether a flag fits the definition of “American flag” in the statute.
The HOA will lose in court most likely; this isn’t the first time a HOA has tried this sort of thing.
My favorite part of the article is this quote:
“Quigley did not get his pole approved.”
But eventually he won the case.
Are you sure the Betsy Ross flag is covered under the statute? I could read it either way.
Aside from that, while my preferred reading of the ICC allows Congress to regulate HOAs in this manner, I think there’s a colorable argument under Lopez/Morrison that this regulation exceeds Congress’s power.
If I really wanted to pick a nit, the flag shown in the photograph illustrating the news report linked in the OP does not seem to be the Betsy Ross flag. True, it has the stars arranged in a circle (more or less) but it also has the numerals “76” in the centre of the circle.
You could at least make a case that this is not the “flag, standard, colours or ensign” as defined. While the definition is obviously flexible, the flexibility seems to me designed to cover displays of part only of the flag, of flags with other than thirteen stripes or other than 50 stars, or of unusual proportions, etc, as long as a person seeing the flag displayed would believe it to represent the US flag. What we have here, though, is a flag with a prominent added element. The numerals “76” do not form, and have never formed, part of any version of the flag of the United States. In fact the US Flag Code explicitly states that “the flag should never have any mark, insignia, letter, word, number, figure, or drawing of any kind placed on it or attached to it.” If the flag shown in the newspaper article is the flag in question, then it’s at least arguable that it’s not a “flag, standard, colours or ensign”, and so not protected.
I make no comment as to whether something like a Home Owners Association should have any right to control what flags (if any) people fly on their homes. An interesting question is whether the HOA could provide that home owners displaying the a flag shall not do so in a way which breaches the flag code.
My personal preference would be to strengthen Lopez and Morrison, and in fact I wish Wickard had never happened.
There are other ways to get at this than the way Congress decided to approach the issue. Congress could have limited its reach to HOAs for which a mortgagee is using a Federally-backed loan or going through a Federally-backed company for the mortgage. Congress could deny the mortgage to non-conforming HOAs. That would probably get at close to 99% of HOAs while relying on Congress’s spending power.
But, if we go the route of relying on mortgages for the tie to Federal power, we may be able to use the IC in a less Wickard-esque fashion. I think it’s probably safe to say that nowadays, most mortgages have some interstate reach to them, and since a lender is a potential party to an HOA agreement (if the property goes into foreclosure), we could probably rely on that for an IC-hook.
But, this is all legal theorizing, since Congress seems to be relying on Wickard here.
A special snowflake continually bends the rules of a completely and totally voluntary organization and is shocked (shocked!) when, after repeated warnings, he is subject to the sanctions as defined in the regulations of said organization? Despite disingenuously appealing to “patriotism”, in what is a clear case of trying to paint the HOA as a bunch of America haters?
Cry me a river. Move to a house without an HOA, and fly whatever you like. You get your flag, and everyone else gets one less yahoo to deal with.
I’m generally pro-flag and anti rule as well. But I concur with the above.
You know the rule.
You get warned.
You get a small fine
You get a bigger fine
Then WOAH!!!
Everyone wants to do what they want to do, but they don’t want their neighbors bringing down their property values when they want to break the rules.
Guy seems like he just wants to pick a fight.
Now, now, now. I think we can be generous and say that they deserve six or seven tons.
That’s a very picky nit!
The law quoted by Bricker defines the flag as anything which " the average person may believe to represent the flag, colors, standard, or ensign of the United States of America."
The flag pictured certainly does not represent Saudi Arabia, or Canada, or France. When you see it, what do you think of?
The average person doesn’t remember the details of exactly what the Betsy Ross flag looked like, but any average person would definitely say that the flag in the picture represents the colors and standard of the USA from earlier times.
The real issue is the contradiction that underlies the OP: how do oppressive HOA’s manage to flourish and develop dicatorial powers----in a nation of people whose deepest pride is having invented the idea of individual freedom, and who hold cowboys (and guns!) and the First Ammendment as the essence of America.
This. Well said.
I don’t understand why people buy houses that have an HOA as part of the deal. Why would you enter into a legal contract that limits what you can do with you own property?
Conspicuously absent from this analysis is the federal law that appears to protect his latest conduct.
Don’t get me wrong – the guy has a flag collection, likes to fly it, and is butthurt his HOA won’t let him. He’s been flying different flags and daring them to do something. I have little sympathy for any of that.
But on this one instance, he’s stumbled into a situation where he seems to have the law on his side. The HOA is in the right about the Colorado flag, the Gadsen “Don’t Tread On Me,” flag, and for all I know the flag of the Republic of Ireland.
But legally, not about this flag. As I understand the law, flying THIS flag is something HOA’s cannot legally prohibit.
What does it matter what flag someone wishes to fly ? My town could be covered in various flags like a French regatta, and it wouldn’t bother me.
As president of our HOA, I resent this.
Actually, the reason I’m president, and probably will be again this year, is because during my term I did absolutely nothing. People seem to like that approach.
I agree with UDS. I think the law protects stylized versions of any current or historical United States flag, but does not protect such a flag that has significant additional visual elements if it makes it so the flag no longer purports to represent a legit flag or it does not cause the average person seeing it to believe without deliberation that it represents “the flag, colors, standard, or ensign of the United States of America.”
I don’t know if the average person knows shit about the Betsy Ross flag. I doubt it. But it seems plain to me that a flag with an additional element no longer purports to be any current or historical official flag. The text of the statute does not protect my flying a U.S. flag with a bad-ass musket, a sexy Abigail Adams, or two horses fighting superimposed on the stripes. So I’m not sure why slapping a '76 on there is much better.
ETA: Although a little after-post googling reveals that this might indeed be a legit flag–the Bennington flag.
This is a completely different interpretation than what I am reading. He took down 2 other flags that they had a problem with; the reason he is not taking down this flag is because it is illegal for the HOA to prevent him from flying an American flag. The main question is whether or not a Betsy Ross flag, with the stars arranged as they are falls under the definition of American flag. Bricker went to the trouble to look up the law and it seems pretty clear that it is the HOA that is in violation of the law and not the homeowner. In reality, it would appear that the HOA is the one acting like a special little snowflake.
It might not bother you, but it might bring down property values if it bothers enough prospective homebuyers. The reason people join HOAs in the first place is to be able to resell their home for maximum value down the road. I think HOAs are really stupid and would never buy a property attached to one myself, but I understand why people do. I doubt that most people living under an HOA plan to stay in that house for the rest of their lives. Because, who cares about the value a home will have after they’re dead?
Actually, I’m not even sure the law protects historical flags. It does reference any number of stars or stripes, but that may be best read as meaning the flag can be stylized to evoke the United States flag, rather than as meaning it can be a historical flag.
Unless “flag, standard, colors, or ensign of the United States of America” means the current U.S. flag, why would the Gadsden flag not be covered but the Bennington flag be covered?