February 19, 2004
Utah State Senate
The ACLU of Utah writes to register its concerns with House Bill 79, Right to Display Flag at Personal Residence. As written, the bill grants residents the right to display either a United States or State of Utah flag, and implies that other signs, flags or banners may be prohibited. If H.B. 79 is applied so that it allows the prohibition of the display of other signs, flags or banners, it may be an unconstitutional abridgment of residents’ First Amendment rights.
Communication by flags, signs, or banners is protected First Amendment speech—indeed this type of communication is virtually pure speech. Accordingly, legislation seeking to control the content of this protected speech must be narrowly tailored to meet some overriding or compelling governmental interest. Aesthetics or traffic safety, for example, do not constitute a compelling governmental interest sufficient to justify a content-based restriction. See, e.g., Dimmitt v. City of Clearwater, 985 F.2d 1565, 1572 (11th Cir. 1993) (holding, in the context of a facial over?breadth challenge, that a regulation supported by aesthetic concerns is not supported by sufficient government interests to validate content?based regulation); Village of Schaumburg v. Jeep Eagle Sales Corp., 676 N.E.2d 200, 204 (1996) (finding that "[t]raffic safety and visual aesthetics are not the sort of compelling state interest required to justify a content?based restriction on expression").
If the bill is applied so that it allows residents to display specific flags, which communicate a non-commercial message, but prohibits display of commercial or political messages, the bill may unconstitutionally interfere with protected speech. See City of Ladue v. Gilleo, 512 U.S. 43, 114 S. Ct. 2038 (1994) (“The use of signs, containing both commercial and noncommercial speech, is an important method of free expression.”). We urge this committee to rewrite the bill so that it clearly avoids the violation of residents’ right to free speech and control of their property. Residents should not be prohibited from displaying the United States flag, the State of Utah flag, or other signs, flags or banners.