This article was first published at The McAlvany Intelligence Advisor on Friday, September 12, 2014:
The Gadsden flag of a coiled rattlesnake on a bright yellow field with the words “Don’t tread on me” beneath it was designed by American General Christopher Gadsden in 1775 during the American Revolution. Benjamin Franklin explained what the flag meant to Americans then:
I recollected that her eye excelled in brightness, that of any other animal, and that she has no eye-lids – She may therefore be esteemed an emblem of vigilance. – She never begins an attack, nor, when once engaged, ever surrenders: She is therefore an emblem of magnanimity and true courage. – As if anxious to prevent all pretensions of quarreling with her, the weapons with which nature has furnished her, she conceals in the roof of her mouth, so that, to those who are unacquainted with her, she appears to be a most defenseless animal; and even when those weapons are shown and extended for her defense, they appear weak and contemptible; but their wounds however small, are decisive and fatal: – Conscious of this, she never wounds till she has generously given notice, even to her enemy, and cautioned him against the danger of stepping on her. – Was I wrong, Sir, in thinking this a strong picture of the temper and conduct of America?
Not much has changed in the past 239 years, as the Gadsden flag still represents American patriotism, disagreement with excessive government overreach, support of basic rights guaranteed by the Constitution’s Bill of Rights, and a warning to those attempting to infringe on those rights.
It’s especially appropriate, then, that that very same flag triggered a confrontation between a small business owner and the code enforcers of Ocala, Florida. When Keith Greenberg hung the Gadsden flag out in front of his business, a sporting goods store called the Gear Barrel, back in May, code enforcers for the city unknowingly stepped on that rattlesnake when they told him he couldn’t. The only flag allowed would be the flag of the United States or the flag of the state of Florida.
Greenberg had just arrived from Chicago, seeking the freedom of the Sunshine State which remains grossly inhibited in Illinois. When he got the letter from Ocala demanding that he remove the flag or pay fines up to $500 a day, he was shocked:
This is a shock. Honestly, I feel like this is Russia. I’ve been around the world…. This is what you expect in really closed countries where there is no freedom of expression. Not here – so it’s shocking.
And then he got mad. He took down the flag because he knew his brand-new business couldn’t afford the fines and decided to put the event up on YouTube. He explained the situation, and the video went viral. Then he called the president of the Rutherford Institute, John Whitehead, for help. Said Greenberg: “This issue for me is a First Amendment issue. It’s freedom of speech, freedom of expression.”
Whitehead welcomed his call, listened to his story, and wrote a letter to the code enforcers of Ocala. Said Whitehead: “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. Under the First Amendment, the government has no authority to pick and choose what type of speech it approves.”
In his letter Whitehead told Ocala to prepare for World War III:
The demand that the Greenbergs remove the flag and the ordinances upon which the demand is based are patently in violation of the First Amendment to the United States Constitution and must be withdrawn forthwith…. These provisions constitute a content-based restriction on speech and are unconstitutional.…
Because the notice and threat to prosecute infringe on the Greenberg’s First Amendment rights, it is imperative that these actions be renounced immediately and assurances provided that they will not be cited again for displaying their flag.
Whitehead did not need to add the words “or else.” The city Council got the message and on Tuesday night directed the city attorney to review and redraw the offending code to protect Greenberg’s rights. The Council had received so much negative press over the incident that it issued a statement claiming that the code was not intended to regulate content but merely to “help control clutter.” Greenberg said this was eyewash, that it was all about content, according to the officials he spoke with, but he expressed satisfaction that the city council was going to rewrite the code to allow him to hang the flag without interference.
Patrick Gilligan, Ocala’s city attorney, should have it pretty easy in rewriting the offending code. Back in 1993, the 11th circuit Court of Appeals ruled, in a nearly identical case, Dimmit v. City Of Clearwater, that that “city’s interests in anesthetics and traffic safety cannot justify limiting the permit exemption to government flags. The deleterious effect of graphic communication upon visual aesthetics and traffic safety … is not a compelling state interest of the sort required to justify content based regulation of non-commercial speech.” The court added:
We must invalidate the Clearwater sign ordinance as facially unconstitutional. By exempting only government flags from the permit requirement, the city has unconstitutionally restricted expressive conduct based on content.
The irony and the satisfaction that Greenberg must now be feeling reflects the provable fact that the same issues of rights and individual freedom versus government overreach represented by the Gadsden flag in 1775 are still being successfully contested 239 years later.
Rutherford Institute Defends First Amendment Rights of Florida Sporting Good Store Owners Ordered by City to Remove “Don’t Tread on Me” Flag
Rutherford’s letter to Ocala, Florida officials
Flag has businessman, city at odds
The Blaze: The ‘Shocking’ Action a Small Business Owner Said a Florida City Is Demanding He Take: ‘This Is a Shock. Honestly, I Feel Like This Is Russia’
Ocala Post: Don’t Tread On Me flag making waves in Ocala
Dimmitt III v. City of Clearwater