HOAs may not prevent you from flying your flag upside down, but that doesn’t make it ok

On July 24, 2005, President Bush signed the Freedom to Display the American Flag Act of 2005. This act was passed as a response to homeowners associations that were placing restrictions on the ability of individual home owners to fly the U.S. flag on their property. As a result, home owners now have the right to fly the flag on their property in a manner consistant with “any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.”

Apparently some HOAs don’t know about this law, including at least one in my home state of Colorado (and another in that most patriotic state, Utah). Today’s Denver Post has a story about Beth Hammer, a resident of the Denver suburb of Wheat Ridge, who has hung her U.S. flag upside down as a symbol of distress.

The 64-year-old retired banker said flying the flag with the white-starred blue field – called the union – on the bottom is her silent protest.

“I think the war in Iraq has put this country in distress,” Hammer said. “We are losing lives, liberty and our honor.”

Mrs. Hammer believes that it is her First Amendment right to free speech that is at issue here, while the HOA believes that it is within their authority to tell Mrs. Hammer to hang the flag right side up.

Both are right – and wrong.

According to the precise wording of the Freedom to Display the American Flag Act of 2005, there’s a decent chance that a judge would tell Mrs. Hammer that the HOA’s restriction qualifies as a “reasonable restriction.” And there’s ample judicial precedent in the cases of flag burning to suggest that hanging a flag upside down would be similarly protected. But the HOA has no business regulating how a flag is flown, so long as it doesn’t affect the HOA’s duty to “protect a substantial interest,” and I have a very hard time believing that an upside down flag would lower the community’s property values (which is the HOA’s main interest, after all). For that matter, I feel thatanyone who would be driven away from a community because of an upside down flag is a neighbor I probably don’t want anyway.

But Mrs. Hammer is also wrong in her use of the flag. She’s using it as a symbol of national distress when the distress is not immediate and physical, but rather diffused and political in nature. And flying a flag upside down to represent distress over a political opinion or position cheapens the very symbol of our nation in the process.

Categories: Politics/Law/Government

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16 replies »

  1. Ah, but that’s where freedom of speech comes in. She may be wrong (or overstating her case, as you say) but that doesn’t mean she shouldn’t be allowed to say it. By doing so she creates an outer bound for discussion. As you say, she has a point, but it isn’t that bad.

  2. The Second American Revolution will probably begin when someone who has just bought a $300K house finally decides to stop kowtowing to their neighbors about whether they can put up a basketball hoop on their own garage. There is nothing more perilous than frustrating the will of the affluent middle class. Ask Louis XIV.

  3. Gerald,

    Indeed, which is why the upper classes are going to such lengths to ensure the middle class completely vanishes, eroded into a strata of working serfs who should be passively grateful and nothing more.

  4. Mrs. Hammer could always go the long route like Cindy Sheehan, but where will that get her besides nowhere? She sounds like a much more practical person. I support her, screw the HOA.

  5. Mrs. Hammer has the right to fly her flag upside down (although the language of the act raises the question, she still falls under the First Amendment) – I just don’t think she should because I find it disrespectful to the flag. Just as I don’t think people who leave their flags up in bad weather, or overnight without proper illumination, or hung such that they can touch the ground, or printed on disposable napkins and paper plates, or worn as clothing, because all of those things are also disrespectful.

  6. While Mrs. Hammer is engages in legal demonstrations, as disrespectful as they may seem to be, the apparent motivations behind her display stem from the administration’s actions leading up to and prosecuting the war in Iraq. I use the term “war” loosely, because officially, it hasn’t been declared a war by congress.

    I wonder which is most disrespectful to this country, its heritage, and its values: Mrs. Hammer’s protest, or the actions she is protesting?

  7. You’re right all the way around on the flag issue – she’s technically outside the bounds of what the flag code says, I think, but that code doesn’t override her 1A rights.

    As for the HOA, well, the X Files episode where Mulder and Scully posed as Rob and Laura Petrie to take down an evil HOA demon always was one of my favorites…

  8. Flying the flag upside down doesn’t show disrespect for the flag. It shows distress of the flag flyer.
    In my opinion the USA is in the most danger it has ever been in. In May, the President signed a bill giving him dictatorial powers, including canceling elections, in the case of an emergency. Who will decide what constitutes and emergency . GW Bush , who else. We should all be flying the flag upside down.

  9. In my opinion the USA is in the most danger it has ever been in.” (emphasis mine)

    Exactly. In your opinion. And how will you feel when a white supremacist flies his flag upside down because a Jew is President, and only a country in distress would elect a Jew? Or when a significant minority of the South flies their flags upside down when a black is President, and only a country in distress would elect a black man?

    If I saw an upside down flag on a school, I’d call 911 because a smart janitor put it up that way to mark the hostage situation inside. That’s the kind of distress an upside down flag represents – not political opinion. There are rules of decorum when it comes to flying a flag, rules that Mrs. Hammer has violated. And the intent behind flying the flag upside down is what determines whether it’s disrespectful or not.

    Just because Mrs. Hammer has the right to fly her flag upside down doesn’t mean she should fly it upside down.

  10. Having been a foreigner in a foreign land I have born the brunt of being the “despised American.” One such way that a rather famous American protester, Lyndus Percy (look her up on Wikipedia), made her opinions clear to all is to frequently stand in front of the base front gate with an upside down American flag. Percy’s use of the flag was not to signal her “distress” over American policies, but to let everyone know that she did not like Americans and the United States.

    I must play the sentimentalist and wonder how any active duty or retired military members in her community must feel to see Mrs. Hammer’s flagrant abuse of her first ammendmant right.

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  12. Brian,

    I meant to get back to you on this: If we restrict the right to speak openly to protect a symbol that stands for free speech, then is speech really free?

    A flag is just a piece of cloth. It stands for something because we give it the power to do so. If you say she doesn’t have the right to protest using the flag for her means, then the flag actually loses some power.

    Even if white supremacists and anti-Semites fly the flag upside down for their own twisted reasons, that does not diminish the flag’s power. Only restricting the right to protest and dissent does that.

  13. Martin, I have never claimed that she didn’t have the right to do what she’s doing. In fact, she does, and I’ve said so over and over and over again, but everyone seems to mis-understand, so I’ll try a slightly different tact.

    There’s a difference between ethics and law. Law is the realm of “thou shalt not”, or put another way, what you can and/or cannot do. Ethics is a higher realm of thought, of philosophy, or put another way, what you should/may and/or should/may not do. Legally, Mrs. Hammer can fly the flag upside down to indicate her distress. But I consider the way she’s treating the flag as outside the bounds of decorum, and as such, ethically speaking she should not do it.

    Just because you can do a thing doesn’t mean you should. And this fact underlies a great deal of our collapse in political discourse and ability to communicate, both between our country and the rest of the world (just because we could invade Iraq doesn’t mean we should have) and within our own government (just because the Republican-dominated Texas legislature could redistrict between censuses doesn’t mean they should have, and just because the Republicans in Congress could use conference committees to insert legislation without prior House or Senate approval doesn’t mean that they should have).

    If we here at S&R hope to have a real impact in the nation, and possibly even in the world, then we need to step back and acknowledge that just because we can do something sometimes doesn’t mean that we should. If we have not learned that lesson, if we become progressive attack dog bloggers (like too many others out there) because we can, then we’re no better than they are, and we’re no better than our ideological opponents.

  14. Brian,

    You’re wrong in thinking I didn’t understand you. 😉 I did. But whereas you think she should not do what she’s doing, I absolutely think she should. If that’s how she chooses to express dissent and protest, then that right must be protected. 🙂

    I wouldn’t burn a flag or tear it up as a protest, but not because I think it’s disrespectful–but rather because that’s such a loaded image or action that what I’d actually be protesting over would be lost. That’s the same thing that’s happening with this woman–let’s stay focused on why she’s protesting, not on how she chooses to do it. I know you see this distinction, but others do not.

  15. One of the ironies of using the flag to protest U.S. policies is that many of the protesters who are stomping on a flag or burning it are actually treating it with more respect than ill-educated patriots who use flag-printed disposable napkins to wipe their mouths, or are wearing sweaty flag-printed running short, or are lying on a flag beach towel.

  16. But Martin, you act as though flying the flag upside down doesn’t have a clearly and specifically defined meaning. It does. It’s not too far off to compare what she’s doing with calling 911 to complain about Bush and Cheney.