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

Posted on July 12, 2007

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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.

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