On April 8, 2016, I appeared on Fox News’ Fox&Friends Weekend (@ffweekend) with host Sandra Smith (@SandraSmithFox) and attorney Lisa Giovinzzo (@lisagfornyc) to discuss a Donald Trump supporter who is charged with a municipal ordinance for refusing to take down his Make America Great Again flag.
Local officials said the flag violates an ordinance prohibiting the display of political signs more than 30 days ahead of an election. The ordinance carries a possible fine of $2,000 or 90 days in jail.
In the appearance, my colleague, Lisa Giovinzzo, believed that the ordinance violated the free speech clauses of the federal and state constitutions and said she believed the ordinance would be found to be unconstitutional. I disagreed, as I thought the ordinance was reasonable given the township’s right to protect the aesthetics and property value of its homes and that the restrictions were reasonable as to time, place and manner.
In our discussion, I mentioned and relied on State of New Jersey v. Miller, a 1980 New Jersey Supreme Court decision which discussed a citizen’s right to political free speech. In Miller, a New Jersey municipality had an ordinance which absolutely banned all political signs. While acknowledging that political speech is protected and restrictions should be scrutinized, the Court also held that a zoning ordinance may accommodate a town’s aesthetic concerns. In striking down the absolute ban on political speech, the Court emphasized that restrictions upon the time, place and manner of signs must serve a significant government interest and be tied to the uses permitted in that zone.
While this is certainly a dangerous area for the town because of the protection given to political speech, it’s clear from Miller that a municipality may prohibit some political speech if the restrictions are reasonable in their time, place and manner.
Here, this is not an absolute ban on political speech. Should the town elect to proceed and prosecute this man, the town will surely argue that the restrictions are reasonable in time, place, and manner. If the town is right, this man may be prosecuted under the ordinance. If they are wrong, they may be subject to a civil rights lawsuit for a violation of the man’s constitutional rights.
Additionally, as discussed in the appearance, the possible prison term for a violation of the ordinance is discretionary. While there is a maximum sentence of 90 days for violating the ordinance, that does not mean he will be given jail time if the statute is found to be constitutional and he is found guilty. The judge has a number of sentencing options, including jail. I will say that this man has publicly been defiant and his continued replacement of the flag and defiance of the town’s orders may land him in jail for a period of time if he is convicted.