COL Barfoot -Threads Merged

Originally Posted by mdb23

We are still confusing issues here. The indivudual entered into a private agreeement with the HOA that allows the HOA to pursue legal action against him if he violates the codes and stupulations that he agreed to.

I have a legal right to burn a flag.....which means that the govt cannot come after me (legally) if I do so. However, if I have signed a contract with a HOA stating that I will not burn anything on my property, and then burn a flag in my front yard, the HOA can still take legal action for violation of the agreement. That's not a first amendment violation.

It's no different than accepting a private sector job where there are codes of conduct that I must stipulate to in order to get hired....I may have freedom of speech, but if I choose to hand out pro life literature to every customer that comes through my KMart checkout lane, my employer can still fire can fire me...... Well, I have a right to burn a flag.....but if I enter into a binding agreement that says I won't burn anything on my property, then I can still get sued by the HOA....

In both cases, the govt isn;t taking any action against me...a private entity is based upon authority that I gave them by entering into a binding agreement...

This may suck, but it isn;t a violation of freedom of speech.

I agree in terms of the law. But reality is that a lawyer works emotion as well as the law. And regardless of how the law favors the HOA, this lawsuit will shoot them in the foot if played properly.

Finally, the First Amendment (and the rest of the Bill of Rights) protects our rights from the government... but those rights exist regardless. The concept on which the USA was founded is that those rights are inalienable... so, although the First Amendment protects us from the government infringing on them, the basic concept of inalienable rights means that no one has the right to infringe on those rights (as long as they don't infringe on others).

I think a good lawyer could make the HOA wish they had never denied that application.

[mdb23]

Originally Posted by Greenhat

.....although the First Amendment protects us from the government infringing on them, the basic concept of inalienable rights means that no one has the right to infringe on those rights (as long as they don't infringe on others).

True. However, it is not an infringement if the individual knowingly, and of their own free will, enters into a private agreement which governs their conduct and/or activity.

[AJG]

Originally Posted by Greenhat

I think a good lawyer could make the HOA wish they had never denied that application.

The issue of the binding nature of HOA rules has been litigated to death in pretty much every state in the country. I think a good lawyer will tell this homeowner this and advise him as to how to go about displaying his flag within the rules.

[Longrifle]

Originally Posted by AJG

I think a good lawyer will tell this homeowner this and advise him as to how to go about displaying his flag within the rules.

And I think a better lawyer would consider the possibility that this "rule" is wrong in denying a property owner a commonly accepted way of displaying the flag, and would offer his services.

Suppose a HOA had a rule prohibiting invitation of certain minorities to sit on one's lawn. Clearly that wouldn't be an acceptable rule, so why is this one?

At one time "covenants" were enforced, too, until someone stepped up to the plate with a lawyer and got that changed.

I simply do not believe anyone, for any reason, should have the right to tell a property owner how they can display the US flag respectfully on their own land. Paying property taxes alone should provide that guarantee.

[AJG]

Originally Posted by Longrifle

And I think a better lawyer would consider the possibility that this "rule" is wrong in denying a property owner a commonly accepted way of displaying the flag, and would offer his services.

Fine, think what you want. Suffice to say, this issue has long been resolved by the courts in pretty near every case and it's my general rule not to take a client's money for litigating an issue where the long settled law is against him.

Originally Posted by Longrifle

Suppose a HOA had a rule prohibiting invitation of certain minorities to sit on one's lawn. Clearly that wouldn't be an acceptable rule, so why is this one?

Because that law would be violating federal laws and probably state laws also, depending on what state you are in.

Originally Posted by Longrifle

At one time "covenants" were enforced, too, until someone stepped up to the plate with a lawyer and got that changed.

A covenant is a restriction in a deed which in some way limits what can be done with the land by future owners. They are still enforced regularly unless they violate some law.

Originally Posted by Longrifle

I simply do not believe anyone, for any reason, should have the right to tell a property owner how they can display the US flag respectfully on their own land. Paying property taxes alone should provide that guarantee.

As a matter of principle, I agree. As a matter of law, it really doesn't matter what you or I believe, the law is to the contrary absent a statute such as the one someone here posted from Florida.

Frankly, I'm not sure the Florida statute would withstand a constitutional challenge under Article I, Section 10, which provides that "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. But that's just a quick thought off the top of my head, which I admit to not having researched.

[Longrifle]

Originally Posted by AJG

Because that law would be violating federal laws and probably state laws also, depending on what state you are in.

Exactly my point. It's time for a law to protect one's right to fly the US flag on his/her own property.

A covenant is a restriction in a deed which in some way limits what can be done with the land by future owners. They are still enforced regularly unless they violate some law.

My fault for being vague. I was referring to covenants preventing future sale of a home to non-whites.

As a matter of principle, I agree. As a matter of law, it really doesn't matter what you or I believe, the law is to the contrary absent a statute such as the one someone here posted from Florida.

We keep beating around the bush. I think we need a law to allow a property owner to fly the US flag. If he can hang one he ought to be able to fly one, and a HOA can butt out when it comes to the US flag. If they want to restrict any other flag that's another matter for another thread, law, contract, argument, or discussion.

Frankly, I'm not sure the Florida statute would withstand a constitutional challenge under Article I, Section 10, which provides that "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. But that's just a quick thought off the top of my head, which I admit to not having researched.

I believe you. Thus the need for a federal law in this matter.

Originally Posted by mdb23

The simple answer is that the prohibition against minorities in the community would violate federal discrimination laws, a prohibition against flagpoles does not.

And the simple solution, since common sense is lacking in certain HOAs, is a federal law allowing a property owner to display the US flag on a flagpole.

Just as there is a clear need for laws to prevent racial discrimination in contracts, there obviously is a need for a law to prevent this kind of crap in contracts.

Originally Posted by AJG

Because that law would be violating federal laws and probably state laws also, depending on what state you are in.

If a lawyer could demonstrate that this rule is violating a federal law or a basic principle on which the United States is founded, would that not constitute a similar circumstance?

A number of people have stated that he is allowed to display a flag, just not on a flagpole.

However, by denying him his flagpole, isn't the HOA denying him the ability to raise and lower the flag in a manner consistent with military protocal and pay respects to that flag in a manner which is indicative of his status as a recipient of the Medal of Honor?

Frankly, I'm not sure the Florida statute would withstand a constitutional challenge under Article I, Section 10, which provides that "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. But that's just a quick thought off the top of my head, which I admit to not having researched.

I believe that argument was used pre-civil war to enforce the pursuit of slaves. I'm not sure I'd want to make an argument that called on that as precedence.

[mdb23]

Originally Posted by Longrifle

Suppose a HOA had a rule prohibiting invitation of certain minorities to sit on one's lawn. Clearly that wouldn't be an acceptable rule, so why is this one?

The simple answer is that the prohibition against minorities in the community would violate federal discrimination laws, a prohibition against flagpoles does not.

[MakoZeroSix]

Read the good Colonel's story again. Its not about the flagpole, its about the fight! Its about his ability to stay alive and fight for what he thinks is right. I would hate to say that he would probably get sick or worse if he were to win this case and then have nothing to fight for.

NOTE: This is the opinion of someone who never has and never will live under the fascist rule of a home owners association, which is really just a collection of uppity sheep that desperately wish they were born as sheep dogs or wolves. This is their next best thing for them, controlling lesser sheep.

Hey, whoa, bro...Wouldn't Dale Carnegie opt to appease the homeowners association, in an attempt to win their friendship and influence them?