The North Carolina Department of Administration created a new rule this past September regarding public property that states “To ensure the safety and protection of demonstration participants and/or the public at large; signs, banners, posters and other similar displays may not be affixed to, or supported by any metal, wood, or plastic posts or other supportive devices constructed of metal, wood or plastic.”

This would mean that people can’t bring American flags with these types of posts to a rally on public grounds.  The state is warning people against bringing these “illegal flags” to tomorrow’s tea party in Raleigh.  The one exception, which isn’t in the above rule but has been mentioned by the state, is for flags with posts that are a foot or less.  There also technically could be a way to have a post not made of metal, wood, or plastic, but this would seem kind of difficult and impractical for most people. 

Today, I wrote a letter to the NC Department of Administration and to the State Capitol Police.  Here’s my letter:

______________

April 14, 2010

S. Tony Jordan, Jr.
Director
Facility Management Division
North Carolina Department of Administration
Sent via email ([email protected])

Mr. Jordan,

On April 15, 2010, there is going to be a tea party event at the state Capitol.  As has been reported, individuals coming to this rally are not allowed to display any item affixed to posts or other supportive devices made of wood, plastic, or metal.  This would include the American flag.  The one exception would be a post shorter than a foot or less (although this exception is not in the rule itself, but has simply been reported).

As a practical matter, many individuals coming to the tea party will be unaware of this questionable restriction.  If they arrive trying to express their support for our nation by carrying a flag inconsistent with this rule, it would be extremely unfortunate for them to be turned away or forced to leave state-controlled grounds. 

Among these individuals will be veterans who risked their lives to keep this nation safe.  It would be an insult to keep them from proudly displaying their flags.

For many of these individuals, they will be forced to choose between carrying their own flag and possibly disregarding flag decorum.  Here are a couple of applicable flag decorum guidelines that are listed in the United States Code (4 U.S.C. ? 8):

?    “The flag should never touch anything beneath it, such as the ground, the floor, water, or merchandise.”

?    “The flag should never be fastened, displayed, used, or stored in such a manner as to permit it to be easily torn, soiled, or damaged in any way.”

Flag decorum, coupled with this restrictive policy, means it would be very difficult to simply carry a flag in one?s hands without a supporting device.

I understand that this new rule is designed to protect the safety of the public.  However, there are numerous alternatives to removing people with ?illegal flags.?  For example, if individuals are carrying flags with extremely large posts, officers could simply ask those individuals to provide some room between themselves and other individuals.

The best solution is to simply use common sense.  If the rally is peaceful and the participants are acting properly, which I would expect they would, there is no reason to take any action unless, and if, there is a reasonable fear of harm.   

I urge you to respect fellow North Carolinians and their desire to responsibly carry their flags with pride. Taking aggressive action against our veterans and other patriotic Americans if they are carrying ?illegal flags? could merely serve to create problems and undermine the very safety you are seeking to protect.

I appreciate you considering my concerns.

Sincerely,

Daren Bakst, J.D., LL.M.
Director of Legal and Regulatory Studies

cc:

W. Scott Hunter
Chief of Police, State Capitol Police
[email protected]