The following letter was published in this week’s issue of the Gazette.
To the editor:
As we celebrated Independence Day (or mourned it, depending on your politics), the debate over free speech in Croton continued. What speech is permissible in Croton? The answer is somewhat surprising.
As a threshold matter, the Constitution gives you certain rights regardless of what city or village you live in. Free speech is one of those rights. Even in Croton.
The Croton Village Code is more restrictive than the Constitution, which raises the issue of what standard the village Justice Court will apply. Back in 1803, the US Supreme Court said: “A law repugnant to our Constitution is void.” In 2021, the Croton Board of Trustees and a fair number of Croton residents would say that the Constitution is what is repugnant to the village code, as well as the values of many residents.
Let us assume that the Justice Court holds that the US Constitution is subordinate to the Croton Village Code. What free speech is granted to us in the village code by the Croton Board of Trustees?
As a resident of Croton, your rights to put up political signs are governed by the Zoning section of the code. The entire code is online, and Zoning is Chapter 230. The definitions for the laws in this section can be found at section 230-4. Laws regarding signage are at 230-44. So in order to find out what you can be issued a violation for, it is necessary to see if your expression of speech is exempt from 230-44.
The code defines “sign” as broadly as can be imagined. It covers all the flags, banners, lawn signs and more. It allows four exemptions from coverage, lettered “A” through “D.” It is the middle two “B” and “C” which are of relevance here.
“B” exempts: “The flag or insignia of any government or governmental agency.”
This answers the question about the American flag: Yes, it can be flown in Croton without getting a permit. That this is even a topic of conversation in Croton is indicative of how far we have come.
Of course as some have pointed out, the Nazi flag would be considered the flag of a government. The code does not specify that the government must be in existence, and in any event the current German government is a successor to the previous German government which did fly the Nazi flag.
The “Betsy Ross” flag dating back to 1777 (which is racist pursuant to a declaration of Mr. Kaepernick as ratified by Nike) may be lawfully flown in Croton, as well as the old Soviet hammer-and-sickle. Croton residents may even fly with pride the same flag which currently flies over the Uyghur concentration camps.
The Gadsen flag was uncontroversial for most of America’s history and actually quite popular during the Bicentennial in 1976. Now it is declared racist by many, and probably would be a target of Croton political leaders if any homeowner dared to fly it. The flag was used as the standard of the first Commander in Chief of the Navy. If you get a ticket for the Gadsen flag, the Village Justice would have to decide whether the Gadsen flag is the flag of a government agency since technically it was a personal standard of the Commodore commanding the USN flagship. Does that make it exempt under village code 230-4?
The Jolly Roger flag has been flown in Croton in the last few weeks, and it poses a similar question as the Gadsen flag. Fans of the pirate standard may take comfort in knowing that it is flown at sea today onboard the US Navy destroyer USS Kidd (DDG-100), for historical reasons dating back to the first Kidd to be commissioned in 1943. Whether this is sufficient to enable it to be lawfully flown in Croton is a matter yet to be adjudicated.
Most of the confusion revolves around what is covered under Croton village code exemption “C”.
“C” exempts: “The flag of any civic, political, charitable, religious, fraternal or similar organization, which is hung on a flagpole or mast.”
The striking thing about this is that how much free speech you have in Croton depends on whether you have a flagpole. The same piece of cloth which you can legally display on a flagpole becomes illegal if you hang it on your outside wall.
“My suggestion is that we declare Croton an anti-First Amendment Sanctuary City. This would necessitate a resolution from the Croton Board of Trustees saying that Croton will not respect the First Amendment nor will it assist in any attempt by the federal government (including federal courts) to enforce the First Amendment in Croton.”
The other key point is that you need third-party approval to express your opinion. Want to fly a “Thin Red Line” flag to honor firefighters? If you just hang it out, then you need to pay your permit fee and hope the Village Engineer and the Planning Board agree with your viewpoint. But if you find a Fire Department fraternal organization that says the flag is an “organizational” flag, then you are exempt under subsection “C”.
It will come as no surprise to know that you can hang a “Croton Dems” flag till the end of time, and never get a visit from Croton code enforcement. Although you can buy “Republican” flags online, it looks as though the Republican National Committee does not have an organizational flag. So for the time being, Dem is the only way to go. You could also hang a “Proud Boys” flag or a Stormfront flag (“White Pride World Wide”) since those are organizations.
“Pride” flags are not exempt. Contrary to what you have read on Croton social media, the Pride flag is indeed political. The very essence of that flag was intended as a political statement, and designed at the suggestion of businessman-turned-politician Harvey Milk. The ahistorical claims about the Pride flag are not simply false, they are disrespectful to the memory of those who fought for equality. That being said, Pride flags are not exempt from code enforcement in Croton because the Pride flag is not the flag of an organization. No Croton code enforcement officer is going to ticket you for a Pride flag, but they could do so.
This illustrates a key problem with attempts by the Croton Board of Trustees to target dissenters: it is very difficult to draft a law allowing for expression of “desirable” viewpoints but suppressing those viewpoints you find—um—let’s call them “deplorable” viewpoints. The Pentagon is wrestling with this issue as they want to encourage Pride and BLM flags but avoid reappearance of the Confederate flags that caused enactment of the current restrictive flag regulations on US military bases.
BLM flags are a bit of a conundrum. Of course under the US Constitution they are not a problem. And in Croton it is more likely that we will have snowfall in July than the Village Manager or Board of Trustees will sic code enforcement on BLM flag flyers. But let us take a hypothetical look at BLM flag status under Croton law.
Croton has a policy of favoring BLM, including waiving normal permit fees and insurance requirements for the BLM march. One reason given is that BLM is a “movement” and not an organization.
Well, you can see how this poses a problem under Croton village code: if BLM is not an “organization” then it does not fall under exemption “C” but if the municipality takes the position that BLM is an “organization” for purposes of “C” then that raises the issue of exemption from permit and insurance requirements applied to every other organization.
It is not beyond the realm of possibility that Croton will ticket a BLM sign for strategic reasons, perhaps even by pre-arrangement. If the quest to banish MAGA from our midst ends up in federal court, there are optics for the Village Board of Trustees and Village Attorney to consider—for both reasons of law and publicity. If you are Mayor Pugh or Manager Healy on the stand, it looks bad if the only one you have pursued is an elderly Vietnam War veteran who put up a political sign that the community dislikes because of the viewpoint expressed. Village courts and state courts may wink and overlook the obvious, but federal judges tend towards more reverence for the Constitution.
Leaving aside the distinction between putting a sign on a flagpole being legal versus taking that same sign and hanging it up on a wire being illegal, let us consider the infamous MAGA flag which has become an obsession at the Municipal Building.
Under the village code exemption “C” it would appear that the MAGA flag is acceptable to be flown on a flagpole since it was the flag of a political organization. You can also currently purchase Trump flags online from groups which have legal status sufficient to enable a finding in Village Justice Court that they are an emblem duly authorized by an “organization.”
There is a separate issue as to why the same item is lawful to display on a pole but not to put on your fence or attach to your house or hang from a wire. I personally am not a fan of these displays, but they are my fellow residents expressing their speech and my personal history has led me to appreciate that so-called “community values” are a dangerous basis on which to premise either code enforcement or judicial determination.
If we really do want to silence those not in conformity with the Croton majority, at least we should buttress our legal position. Losing these type of cases can cost a lot of money in damages and even result in fee-shifting onto the taxpayers, resulting in legal bills in the high five and even six figures.
My suggestion is that we declare Croton an anti-First Amendment Sanctuary City. This would necessitate a resolution from the Croton Board of Trustees saying that Croton will not respect the First Amendment nor will it assist in any attempt by the federal government (including federal courts) to enforce the First Amendment in Croton.
Croton’s Board of Trustees is notoriously opposed to speech by citizens, let alone expressions of dissent. It should be no problem to get a unanimous vote on the sanctuary resolution. The Village Prosecutor would be able to raise this in rebuttal when a defendant claims rights under the Constitution. The Village Justice could cite the sanctuary resolution in the Opinion, and when this ultimately ends up in Southern District the outside counsel for the village could proudly proclaim that in Croton, we stand united and firm in our resolve to crush dissenting viewpoints.
Paul Steinberg