I'm Gonna set your Flag on Fire: Can a neighbor really have you thrown in jail for flying a political flag?

Last week I provided some practical advice for readers interested in voting in this year's heated Primary Election. It turns out that the election war has moved from online social media advocacy to neighborhood disputes. On Friday of last week, New Jersey Advanced Media reported that West Long Branch resident and Donald Trump supporter, Joseph Hornick, was cited for flying a flag in front of his home. The flag at issue is inscribed with the word "Trump" and contains Trump's campaign slogan: Make America Great Again. Unfortunately for Mr. Hornick, not everyone in his neighborhood is a Trump fan. According to media accounts, former Democratic councilman Brian Hegarty reported Hornick for violating the town's political sign ordinance. Hornick later received a citation and faces a $2000 fine, up to 90 days in jail, or both. Hornick has vowed to fight the citation in municipal court on April 20th. Regardless of who you support for political office, now or in the future, Hornick's citation raises an important First Amendment issue.

The town ordinance at issue states "No political sign shall be displayed sooner than thirty (30) days prior to the date of the election or the decision of the issue is scheduled," and appears in the "police" section of the town's code book under the heading "Political Signs." The town's code book defines a "political sign" as "a sign which directs attention to an issue, issues, candidate or candidates for public consideration in an election, including the name of a political party." Advanced Media reports that Hornick will contend that his flag is not a "sign," and while this argument has some teeth and is the most practical one for a municipal court hearing, the more important and interesting issue is whether a town can fine or jail a person for flying a political banner in front of his house.

This issue raises two fundamental questions. The first is whether a local ordinance can prevent a homeowner from displaying on sign or flag with a political message. Although West Long Branch municipal prosecutor appeared confident in media reports, the town will face an uphill battle if Hornick or another resident brings his challenge up the appellate ladder. Free speech, political speech in particular, is protected by both the State and federal constitutions. The State Supreme Court (NJSC) and the Supreme Court of the United States (SCOTUS) have opined on similar issues related to free political speech on one's property. And none of those cases went well for the entity imposing a restriction on free speech.

The most recent challenge to political signage in our State Supreme Court came in 2012 when a local political candidate challenged an HOA rule limiting political signs in the development. That case, Mazdabrook Commons v. Kahn, resulted in a victory for the homeowner. While ruling in favor of the homeowner, NJSC recognized that "Political speech in support of one's' candidacy for public office is fundamental to a democratic society." Although the Kahn case involved a private HOA contract, the ruling is beneficial to Hornick and other homeowners because those who enter into HOA contracts voluntarily limit certain free speech and property rights; unlike the situation with Hornick, who never entered into such an agreement. In other words, courts are more inclined to allow restrictive HOA provisions like the one invalidated by NJSC in Kahn; but less likely to uphold a similar restriction when enacted and enforced by local governments.

 In 2008, NJSC addressed a similar issue in which a municipal ordinance in Lawrence Township prohibited the display of balloons, except during "Grand Openings" and other specific occasions. When a union was prohibited by the township from displaying an inflatable rat, NJSC struck down the ordinance as a burden on free speech. The Court reasoned, in part, that the ordinance was content-discriminatory because it allowed balloons for certain advertisements but not others. That case, State v. DeAngelo, would also be beneficial to anyone fighting an ordinance similar to West Long Branch's.

Finally, SCOTUS faced the issue of prohibiting political lawn signs in the 1994 case, City of Laude v. Gilleo. The defendant homeowner in Gilleo fought a city law that prevented her from posting certain lawn signs on her property, which included an anti-war sign that she displayed. In finding the law unconstitutional and rejecting the City's time, place, and manner argument, the Justices wrote "Displaying a sign from ones' own residence carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means, for it provides information about the speaker's identity, an important component of many attempts to persuade." Thus, SCOTUS recognized that making a political statement with a sign in front of one's own home deserved strong protection under the federal constitution. Although many of the foregoing cases involved complete bans on lawn signs, towns that restrict political signage in any way will face an uphill battle when defending their ordinances.

The second fundamental question in the Hornick case will involve selective enforcement. If a town uses an ordinance to shut down signs for some candidates and not others, that would raise serious constitutional issues. This claim, however, would require the homeowner to show bias (by collecting information on similar citations) and animus towards the defendant or political candidate. An adjunct yet interesting issue related to this case is whether a selective enforcement claim can be made on the basis of selective complaints. For example, if a town only enforces its anti-sign ordinance when someone complains and people only complain about a certain political candidate or party (in this case Donald Trump), is such enforcement constitutionally sound?

As you can see, this case raises important constitutional and free speech issues, but there is probably enough of an argument at the "definition level" to allow a municipal court to rule in Hornick's favor and allow the courts (and towns) to dodge the constitutional issues (at least for now). For example, the definition of "sign" quoted above appears to apply specifically to traditional campaign signs and not banners. Also, if a flag is a sign, is a shirt or a bumper sticker? Can a resident wear a candidate's shirt while standing in front of her home prior to 30 days before an election without being subject to arrest? Further, there is no definition of the term "election," and, an argument could be made that a resident can display a sign 30 days prior to New York's Primary Election, which is on April 19th. These arguments alone will likely end this case in municipal court, which is in a way unfortunate because it leaves the questions related to political signage open to dispute.   

I have filed an OPRA request with West Long Branch in an effort to obtain more information on this issue. I intend to follow this case and will post updates here for anyone interested.