OCALA, Florida. —The Rutherford Institute has come to the defense of the owners of a Florida sporting goods store who were ordered by Ocala, Fla., officials to remove a Gadsden flag, also known as a “Dont Tread On Me” flag, displayed in front of their store. Rutherford Institute attorneys are insisting that the City renounce its order to remove the flag, pointing out that the City’s threat to prosecute small-business owners Keith and Hannah Greenberg for flying the flag in front of The Gear Barrel as well as its flag ordinances constitute content-based restrictions on speech that patently violate the Greenbergs’ fundamental right to freedom of speech. Under the City’s ordinances, display of the flags of the United States and State of Florida is allowed, but other flags are prohibited. The federal appeals court for Florida has previously held that laws allowing only governmental flags to be displayed are content-based regulations of speech that violate the First Amendment.
“What we’re seeing is the criminalization of free speech, manifested in incidents where the government attempts to censor speech that is controversial, politically incorrect or unpopular,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “Under the First Amendment, the government has no authority to pick and choose what type of speech it approves.”
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 so-called “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 also was 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 are demanding that the City’s threat to prosecute the couple be withdrawn. Institute attorneys also point 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. Whitehead cites a 1993 decision of the U.S. Court of Appeals for the Eleventh Circuit ruling an ordinance of the City of Clearwater, Florida, unconstitutional for restricting all flags except governmental flags.