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States' Regulation on the Gadsden Flag

Is flying the "Don't Tread on Me" flag a protected nod to America’s past? Some states’ laws are unclear.



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This summer, an Arizona homeowners association (HOA) told one of its residents, Andy McDonel, to remove “debris” from the front of his home or face fines. The debris in question was a Gadsden flag, or the “Don’t Tread on Me” flag, which has military significance and has also been linked to the tea party movement. McDonel has promised a fight, but the incident raises a larger question: Is the Gadsden flag a protected military flag that should be flown freely?

The distinction is important because a few states define which flags and signs HOAs and other organizations can and cannot restrict in their bylaws. In Arizona’s case, state law allows Arizonans the right to fly the American flag, the state flag, flags representing Native American nations and U.S. military flags. Arizona’s list of acceptable flags stems from earlier disputes in which residents were challenged by their HOA for flying various flags. The state Legislature stepped in and passed the Community Association Flag Display Statute, with amendments added over the years.

Depending on one’s interpretation, the current Arizona law could allow HOAs to prohibit the Gadsden flag from flying since it isn’t considered “an official” military flag -- one of the statutes stipulations. Before tea partiers adopted it, the Gadsden flag was being hoisted above ships during the American Revolution, and has since been prominently used by the Navy and Marines. “We believe that the language of the law would permit this flag,” said Dan Pochoda, legal director of the Arizona chapter of the American Civil Liberties Union (ACLU), who assisted McDonel with his fight to fly the flag, asserting that the Gadsden flag is a historic military flag.

McDonel’s case follows several documented cases over the past year regarding the Gadsden flag. In Connecticut, a group of former Marines fought a decision to block the Gadsden flag from being flown over the state Capitol. In Colorado, where an incident similar to Arizona’s played out this summer, an HOA sidestepped a lawsuit and eventually allowed residents to fly the Gadsden flag. In McDonel’s case, the HOA has backed off, lifting the fines it had imposed. Otherwise, Pochoda says, the ACLU would be considering legislative action.

McDonel has yet to receive any additional correspondence regarding the status of his situation, but has blogged that he continues to fly the Gadsden flag outside his home.


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Tina Trenkner

Tina Trenkner is the Deputy Editor for GOVERNING.com. She edits the Technology and Health newsletters.

E-mail: ttrenkner@governing.com
Twitter: @tinatrenkner

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