Letter: Barrington's flag pole approach is 'sheer legal insanity'

Posted 9/14/20

To the editor:

The town's apparent decision to "wing it" with respect to the flying of private flags on the town's public flagpole is destined to suffer the same fate as its ill-considered, …

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Letter: Barrington's flag pole approach is 'sheer legal insanity'

Posted

To the editor:

The town's apparent decision to "wing it" with respect to the flying of private flags on the town's public flagpole is destined to suffer the same fate as its ill-considered, shoot-from-the-hip fiasco earlier this year to conduct what would have been illegal annual property revaluations. In approving one such flag, the town manager obviously was oblivious to the provisions of the First Amendment and Equal Protection provisions of the U.S. Constitution.

The situation reminds me of a lawsuit that I handled for the R.I. ACLU years ago, challenging the R.I. Lottery Commission's refusal to grant a permit to the ACLU to conduct a charitable raffle, despite issuing such permits to other, "favored" organizations. We proved at trial that the commission was motivated by the belief that the ACLU was comprised of "Communists or something." The commission was ordered to write a very large check to the ACLU as a result.

The charitable raffle situation and the flagpole are factually different, but many of the underlying legal principles are the same. The town has turned the flagpole into a "public forum," meaning that the town cannot arbitrarily allow a flag to be flown by a particular organization and deny that right to another organization that the council believes is not as worthy. Yet the council has stated its intention to make exactly such ad hoc, arbitrary decisions, instead of either adopting legally objective standards for flagpole use or disallowing private interest group flags entirely. You can already hear the "ka-ching" of the town's cash register -- the same fate as the Lottery Commission.

Councilor Brier has endorsed the ad hoc approach, in a recent letter to the editor. But his letter is so legally flawed that it is destined to be used as a devastating exhibit in favor of any organization that is denied the right to fly its flag on the town flagpole. He totally fails to appreciate that, already having started down the road of hoisting flags of private interest groups of which he personally approves, the town is inevitably opening the door to other flags that Councilor Brier presumably would be distressed to see flying, such as the Confederate flag, the flags of the NRA, Blue Lives Matter, the Boycott, Divestment & Sanctions movement, etc. In his letter, he bemoans requests by disfavored groups as employing "divisive logic", but what is more "divisive" than refusing to follow the Constitutionally-guaranteed right to Equal Protection of the laws? And he expresses resistance to being "backed into a corner" by other, disfavored groups; but that's a disguised way of saying that he endorses naked refusals to comply with the Fourteenth Amendment's prohibition of discrimination. He also bases his opposition to other flags as being mere "political statements", but what else is the purpose of the 2 private flags that have already flown?

The town's decision to ignore the law and simply "run up the flagpole" (literally and figuratively) each request as it comes along, willy-nilly and guided only by whether the council or the town manager personally approves the content of an organization's message, is sheer legal insanity.

Matt Medeiros

Barrington

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Jim McGaw

A lifelong Portsmouth resident, Jim graduated from Portsmouth High School in 1982 and earned a journalism degree from the University of Rhode Island in 1986. He's worked two different stints at East Bay Newspapers, for a total of 18 years with the company so far. When not running all over town bringing you the news from Portsmouth, Jim listens to lots and lots and lots of music, watches obscure silent films from the '20s and usually has three books going at once. He also loves to cook crazy New Orleans dishes for his wife of 25 years, Michelle, and their two sons, Jake and Max.