On advice of counsel….

Well, that didn’t take long.

We hadn’t even had the second reading on our flag ordinance policy1 yet (that took place at our September 10th meeting this evening), and we already got the first threat of a lawsuit — from an individual demanding we also raise a pro-life flag.

For those that haven’t been flowing the issue closely:

Pride Resolution Introduced

At the June council meeting, Teaneck, for the first time, passed a resolution recognizing June, 2019 as Pride Month within the Township.  Some members of the public in attendance at the meeting also requested a flag raising.  While a majority of council was in favor, council was advised by our attorney that we should have a policy in place regarding flag raising before doing one (for any group), so it was clear that this was speech of the council and not a private group raising the flag on the municipal green.

The difference is not merely academic.

If private groups are permitted to raise flags on public grounds, the government cannot restrict the type of flag being raised, as the government cannot engage in content discrimination.  Any group would be able to raise any flag.  On the other hand, if it was clear, through ordinance, that the flag raising was being done purely by council, it would be the government’s speech — and therefore any objections to other flags on viewpoint discrimination grounds would be moot.

Not everyone understood the issue or why it mattered so much.

What is viewpoint discrimination and why does it matter?

At the most basic level, viewpoint discrimination happens when government chooses a type of speech that is ok or not based on looking at it.  A classic example is a sign ordinance.  If your code says that signs for elections can be up for 60 days, but real estate signs can be up for 90 days, it’s going to be unconstitutional.  How do you know which sign can go up for 60 vs 90?  By looking at it first.  That’s the problem.

So when it comes to flags, if you let others speak, you can’t look at the flag first and then decide whether the speech is ok or not.  Unless…. it’s government’s own speech.

But the State’s top legislator should be aware of the difference and the nuances of the issue.  Especially, when the same litigation prone Senate Majority Leader recently sued the Township of Teaneck because she wanted to block a kid-friendly establishment from moving into the building where she rents office-space.

And yet…. at the July Township Council Meeting, State Senator Loretta Weinberg, appeared and stated that she was “appalled at the excuse that you are worried about a lawsuit” when it came to raising a Pride Flag.

You can watch the video here:

Lawsuit Threatened

Now, we have the first threat of a lawsuit.  It didn’t come from the second amendment folks, but the pro-life side.

In order to leave no room for misinterpretation and in lieu of time constraints, please be respectfully advised that it remains my intent is to raise the “Pro Life” flag on the Township of Teaneck municipal lawn effective October-2019.

Please be further respectfully advised that it remains my intent to cooperate fully with  township officials to that end.

Please be further respectfully advised that it remains my intent to raise the “Pro Life” flag on the Township of Teaneck municipal lawn effective October-2019; absent any “hostility” and with “equal accommodations” rendered to the “Rainbow” flag.

Said request is consistent with, Senate Majority Leader, Loretta Weinberg, D-Teaneck statement published in the Bergen Record, June 20, 2019, which reads, in relevant part:  “it would be another example of our commitment to equality in Teaneck.”

And then came this:

If by such time I have received no response from you, I expressly reserve the right to pursue all available legal remedies, including, but not limited to, instituting formal litigation proceedings against the Township of Teaneck and its officials, and this letter is without prejudice to any other rights or remedies available to me.

Whether this individual will follow through and sue is a question I cannot answer (they have sued before over private / government related speech issues), but I do know that without this ordinance, it would be harder to argue whose speech was on display, after a line of residents, demanded it be raised.

  1. The relevant portion of the ordinance reads as follows (the entire ordinance is available at this link: Flag ordinance)

Sec. 27-7 (c) and (d):

(c)              The Township’s flagpoles are not intended to serve as a forum for free expression by the public. Rather, the Township’s flagpoles are to be used exclusively by the Township, where the Council may display a commemorative flag as a form of government expression. The Township will not display a commemorative flag based on a request from a third party, nor will the Township use its flagpoles to sponsor the expression of a third party.

(d)              No person shall display or place upon any flagpole owned by the Township of Teaneck any flag or other object not otherwise authorized as an expression of government speech by the Township Council of the Township of Teaneck and without the express written permission of the Township of Teaneck.

2 Replies to “On advice of counsel….”

  1. This self serving article suggests that the threat came shortly before the second reading of the ordinance on September 10th. Elsewhere, on Facebook, the author acknowledges that the threat was received by email on June 20th.

    Not by coincidence this is two days after the attorney publicly announced that Teaneck would be open to lawsuits by anyone who wanted their own flag raised. It appears that someone took this as an invitation to threaten a lawsuit. A fine example of a self-fulfilling prophecy!

    1. Then I guess all would have been fine… so long as no one, ever, mentioned that content discrimination is a thing.

      The same individual whose email is quoted has been arguing against content discrimination in speech by the municipality, for over a decade. Should the alternative to confronting a legal reality be to pray he doesn’t get the idea to sue?

      This was silly when you said it the other day and it hasn’t aged well.
      All the more reason I’m happy we took measures to protect the town and be clear in our actions.

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