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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. Last edited by mdb23; 4 December 2009 at 01:21. |
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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. |
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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.
Last edited by mdb23; 4 December 2009 at 02:04. |
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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.
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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.
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“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests.” ~Patrick Henry "Sēlre bið æghwæm þæt hē his frēond wrece, þonne hē fela murne." ~Bēowulf, bearn Ecgþēowes “So, let it rock on-“ Gen’l (R) Thomas S. Woodward, Wheeling, La, 2 May, 1857 |
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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. Last edited by AJG; 6 December 2009 at 20:38. |
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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.
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“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests.” ~Patrick Henry "Sēlre bið æghwæm þæt hē his frēond wrece, þonne hē fela murne." ~Bēowulf, bearn Ecgþēowes “So, let it rock on-“ Gen’l (R) Thomas S. Woodward, Wheeling, La, 2 May, 1857 |
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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? Quote:
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The simple answer is that the prohibition against minorities in the community would violate federal discrimination laws, a prohibition against flagpoles does not.
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