The pettiness of “little leviathan” -- i.e. local government -- crushing individual rights seems to know no bounds. And this is the case in Prescott Valley, Arizona, where Tawney Baccellia has been set upon by “code enforcers” because, get this, in addition to flying her American flag in her front yard, she flies a “Trump 2020” flag beneath a US flag variant in her back yard.
According to Danielle Miller, of Fox10Phoenix, local “code enforcement” officials spotted her terrible attack on the lives and property of others, and—
Hold on.
She was flying flags.
On her own property.
Evidently, based on the activity of the “enforcers”, there must be a keen similarity between aggressive attacks on the lives, property, or fundamental rights of others and…
Flying a flag.
Miller reports that in September, the “enforcers” told Ms. Baccellia she had to take down her Trump flag “because it was against city code” and that if she didn’t lower it, she’d face hundreds of dollars in fines.
Tawny Baccellia says, after talking with Code Enforcement, she was told the reasoning for the violation was, you can only fly a political flag sixty days before a campaign (election) and thirty days after. Also, you can’t have any flag flying beneath the American flag.
Isn’t “patriotism” fantastic? Small governments get to employ it as an excuse to violate civil rights, rights that are supposed to be respected by people who claim to be “American patriots”.
Explained Ms. Baccellia:
It was shocking that someone would try to tell me what I can and can’t fly in my own yard.
Amen to that, Ms. Baccellia.
Ironically, she has an ally in the Mayor, a man named Kell Paguta, who told Ms. Miller:
She’s demonstrating her First Amendment right. She has every right to, and who are we to tell her, ‘No’?
All of which gives us a chance to learn a larger lesson.
As laudable as Mayor Paguta’s statement appears, it’s actually only partly right.
He’s absolutely correct to say that Ms. Baccellia has every right to fly her flag. But his use of the vernacular shorthand of “First Amendment right” is something not just to offer an opportunity for a quibble, but to remind all of us that the right of free speech precedes the First Amendment. It is not created by the First Amendment. No doubt the Mayor knows this and was just using a familiar term. But it’s not just important to reiterate the philosophical truism that rights always precede the state, it’s also important to lay out a bit of slightly sad history about the reality of that First Amendment for those who think it protects free speech on a local level.
The First Amendment actually specifies that Congress:
…shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Local governments could do all those things, and they did for over a century after the adoption of the Constitution.
Some claim that a reading of the Fourteenth Amendment “incorporates” the Bill of Rights into state constitutions. But this is false, and even if it were true, any “incorporation” of the First Amendment into state constitutions would still see the Congress specified in the wording, so we’d be right back to the sad truth that localities actually DO have a power, according to an originalist reading of the Constitution, to regulate speech.
But is the flying of a flag a form of expression akin to speech? Seems like it.
What if this speech is on private property?
Regardless of such detailed questions, and despite the argument I’ve presented above, in practice today, US courts agree that local speech codes are violations of the First Amendment. The fact that the flags are on Ms. Baccellia’s own land tilts the balance even more in her favor should she run into more trouble from “the enforcers”.
And Baccellia is not going to take down her flags. She says she is proud of her President and the American flag variant she flies above the Trump banner is a “Thin Blue Line” flag, flown in honor of police. Technically, she’s not even flying an American flag, even if one were to try to apply the silly codes.
I believe too many men and women died fighting for our freedom of speech.
And it’s likely that in February, the codes will be changed, pulling the government target off her back.
But this presents one final thought.
Let’s say Ms. Baccellia continued to fly her flags and the government didn’t change the code. Let’s say she kept her pro-Trump and pro-police flag up and the city “enforcers” fined her. And let’s say she not only kept up the flags, but refused to pay the fine…
Eventually, she would be charged with a bigger violation, a bigger fine. And if she refused to pay, she would be summoned to court. And if she refused to leave her personal life in order to answer the government demand that she appear in court?
Police, those men along the thin blue line, would be told to arrest her.
It’s possible officers might refuse to carry out their orders, but the reality remains clear. The government would be ordering the police to carry out aggressive actions against the woman who flies a flag supporting them.
That’s a strange reality to face: the fact that an Arizona woman is violating a city statute by flying a police-support flag, which means that she could, in fact, be arrested by the very police she supports.
Welcome to the board game called Modern America.
Freedom and logic are not necessarily included.