Keep your government hands in our business

[kinvore.livejournal.com]

This weekend is Memorial Day weekend in the States, where we honor the men and women who died in military service. You'll see all kinds of patriotic fervor during this time, hell even PBS gets involved, but I'm not by any means complaining. Then we get stuff like this:

A property management company is under hot water for telling a tenant that after Memorial Day he has to take down an American Flag that he has on display in his window.

Here's what gets me:

Dawn Price said she now works to amend the federal Freedom to Display the American Flag Act of 2005, which states no "condominium association, cooperative association, or residential real estate management association" may stop someone from flying the American flag. The law, however, does not apply to renters.

First I'm amazed we even have such a law to begin with, and I'm even more amazed that they want it even more intrusive. I thought conservatives didn't want government telling business what to do? Did these tenants not read their contract before signing it? Shouldn't we let the market decide if this is a good business practice?

It just seems like an example of glaring hypocrisy. Freedom is a double-edged sword, and sometimes it means having to tolerate things you don't agree with.

Comments

[dwer.livejournal.com]

this is a clear example of political speech, protected by the First Amendment to the Constitution, and therefore, wholly within the control of the Federal government.

Conservatives are perfectly happy with having the federal government telling businesses and people what to do, just as long as they agree with it.

And yes, I know you know that... :D

[rasilio.livejournal.com]

Actually as a matter of speech Congress is specifically excluded from ruling on this issue because claiming that flying a flag is a form of political speech is to also claim that denying the use of your property for such purposes is also a form of political speech and any law Congress passed would violate the speech of one faction or the other.

[dwer.livejournal.com]

I disagree.

[a-new-machine.livejournal.com]

Congress has no power to enforce the First Amendment on private citizens. Even 42 USC 1983, the provision giving civil damages against private citizens, require that they were acting under color of law or authority to get you your damages. Your understanding of 1st Amendment law is flawed. Whether you think that *should* be the case or not is another thing. Likely this is ruled under the Commerce Clause, in Congress's power to regulate things having to do with interstate commerce, which home ownership and condo ownership likely fall under per the Wickard test.

Seriously?

[geezer-also.livejournal.com]

Home ownership comes under interstate commerce?

Re: Seriously?

[a-new-machine.livejournal.com]

The Wickard test is incredibly broad. Wickard was a case about a guy growing wheat to feed his family (no sale, interstate or otherwise). The basic ruling is that if the activity has an impact on interstate commerce (there, in the fact that he had an impact on the supply by not buying) then it's actionable under the Commerce Clause. Recent decisions have refined this to something "having a nexus with commerce" (the case that added this said that mere possession of a firearm on a school has no "commercial nexus" and thus isn't covered by the commerce power) *plus* the Wickard test. Home ownership comes about via a purchase, which generally is where you get these sorts of restrictive covenants stopping people from displaying the flag, or from condo associations, which are ongoing commercial relationships. So it's definitely got that "nexus" and as far as "impact," you get wildly long chains of causality (for instance, owning a home changes the available supply of housing in an area, impacting living expenses for others and thus encouraging or discouraging wage changes, immigration to your state, etc.). I'd prefer applying a proximate cause test for commerce, but hey, dems da breaks.

Re: Seriously?

[geezer-also.livejournal.com]

Thank you, but wow!!

[dwer.livejournal.com]

I disagree. The government exists, in part, to protect my first amendment rights.

[a-new-machine.livejournal.com]

The First Amendment is a limitation on government power, not an empowerment or responsibility of government. Your free speech right is free only from gov't interference, not from any interference. Whether you disagree or not, that is the law as it stands. You can think it should work differently, but it doesn't, and never has.

[dwer.livejournal.com]

The government enforces those rights in many ways. One is maintaining freedom from government interference. However there are other ways.

[a-new-machine.livejournal.com]

Except that under the Constitution, they can't do it via the 1st Amendment. The 1st Amendment is self-executing, meaning Congress has no enforcement power - you just have a right to sue for violations of it by virtue of the fact that it exists. Enforcement powers are generally reserved for the Civil War Amendments (13, 14, and 15), and even then, the most potent provisions generally only apply to state actors (with some exceptions). Again, the law in question is not 1st Amendment-based, but likely commerce clause-based, as I said earlier.