Can Wethersfield Reject The “Thin Blue Line” Flag?

This blog is a legal analysis of the constitutionality behind the thin blue line flag issue in Wethersfield. I take no personal stance on the matter, just identifying potential legal issues / claims.

Government Speech

The laws concerning the flying of a flag fall under free speech.

The American flag is a public domain symbol, and when displayed it is a statement, i.e. expressive or symbolic speech.

Free speech, just like every law, is not absolute. There are restrictions on your freedom of speech.

For example, you may have heard of the “shouting fire in a movie theater” exception to free speech. Saying things that cause a commotion can be penalized even though, technically, they are “free speech”. Another example is obscenity, displaying graphic images to the public is not protected under free speech.

But the government has different rules when it comes to freedom of speech. Supreme court caselaw says that a government entity has the right to speak for itself, may say what it wants, and select the views that it wants to express.

This alone should tip you off that decisions made by towns and governments is difficult to question, especially with such a broad discretionary standard.

Recently, the Town of Wethersfield CT denied a request to fly the “Thin Blue Line” police flag which is commonly used to show support for the police.

As a government entity, Wethersfield is allowed to make decisions through their elected officials and decide what symbols and speech will be used in their town and in public areas.

The government is allowed to pick and choose which viewpoints it will promote, but a government cannot discriminate against viewpoints when it invites the public to express their views.

For example, if the government wanted to fly a police flag they can. The Supreme Court has given government bodies wide latitude in what messages they choose to disseminate, leaving those decisions in the hands of the “ballot box” (meaning elected officials), rather than being mystified by a set of predetermined rules.

If the city of Wethersfield is raising the flag to express a government view, then they are given broad discretion and may do so. Presumably, the police, which is a branch of government, would be waving this flag.

The difference is, when a private party wishes to conduct speech in a public forum, the government cannot discriminate based on views. So a city can’t allow pride flags but deny thin blue line flags if private members wish to display them.

In this case, the city has full political discretion to make decisions on which flags it will choose to wave when the message stems from motives promoted by the city and not by private individuals.

American Flags And The Law

An issue which nobody has raised is the problem of flag desecration.

The thin blue line flag could be considered a defacement of the American flag under federal law.

Would anyone ever actually come after you for having a thin blue line flag? No.

But theoretically, federal flag desecration laws could be interpreted to disfavor or even criminalize the thin blue line flag.

People are not allowed to desecrate the American flag. The law used to say that even desecrating representations of a flag was illegal. Now the law has been amended to a more narrow construction where it simply defines flag as “any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.”

In the past, there might have been a good argument that the thin blue line flag was a desecration because it takes the American flag in it’s original form and restyles it with new colors. As far as “defacing” any “representation” of a flag goes, it sounds like the statute would have prohibited it.

Now, there still is an argument to be made that the thin blue line flag could potentially be construed as a defacement, but that evidence is not so strong since the statute has changed it’s definition of “American flag.”