The American Constitution of Liberty - Envy of the World

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The unfolding Armory/flag controversy promises a season of real drama, as the clumsy apparatus of New Rochelle city government tries to control the irrepressible local forces of patriotism and liberty.

The city manager's office (and at time of publication, now the office of Mayor Bramson) I believe to have acted precipitously and presumptuously in its rush to judgment (and at time of publication, in its hurried act of censorship); determining to remove a component of the flag display that was restored to a place of honor at the New Rochelle Armory by volunteers and supporters of the local patriotic group headed by Peter Parente, United Veterans of New Rochelle. As a general matter, I believe the city's chief administrative officer to have been mistaken in his actions by exceeding the essentially ministerial duties usually assigned to offices such as his in municipal and town jurisdictions from here to the West Coast.

As far as I can tell, there has been no formal transfer of the right of use of the historical Gadsden flag to any party or club; Tea, Republican, Democrat, Socialist Workers, Reform or other. If the manager's office claims to be in possession of proof positive that such a private organization or any other has acquired, assumed or accepted ownership, legal or otherwise, of the image of theoiled reptile in a field of yellow, a right of use temporary or in perpetuity to it, or any intellectual property right to the image in question whatsoever, I believe it is obligated to produce it.

Failing that, I believe this action to be one pure censorship, in violation of the First Amendment of the Constitution of the United States and the Constitution of the State of New York. I believe also that this conduct would qualify as a violation of the oath of the relevant office and likely any handbook or employment manual issued to officials and employees of the City of New Rochelle, which was, after all, incorporated under the laws of the State of New York.

I do not believe that any public servant has been charged with the responsibility of public censor, or minister of protocol which, in some foreign jurisdiction perhaps, would entitle such officer to remove from public display symbols deemed to be "disruptive of the public order" or somehow offensive to the sensibilities of one political club, interest group or another, including any elected official or mayor; full time, ceremonial or other. In Stalinist Russia perhaps, or Fascist Italy. But not here.

The functions of a city manager's office are described generally as primarily ministerial. Meaning: it is supposed to transact the administrative and operational business of the city and its financial obligations according to narrow and strict rules and procedures with a minimum of individual prerogative involved (Definition; Ministerial: Of, relating to, or being a mandatory act or duty admitting of no personal discretion or judgment in its performance: from: Collins English Dictionary – Complete and Unabridged © HarperCollins Publishers 1991, 1994, 1998, 2000, 2003). The actions acknowledged by the New Rochelle city manager's office appear to belong to the class of official duties usually described as discretionary which are universally accepted to be rarely exercised, and if so, according to the highest and most stringent professional standards (that is why some public servants, like police officers are: sent to military-like service-academies; tested and screened to the greatest requirements of physical and mental fitness, and; required to account for and explain the firing of any firearms they may employ in the exercise of their "official duties" every day).

I have observed and attended rallies and official meetings of many and various organizations, groups and clubs, political and officially non-partisan also, including: the Republican, Democratic, Conservative and Libertarian parties, the New Rochelle Reform Club, B'nai Brith, the Anti-Defamation League, assemblages of Tea Party-devotees, an Occupy Wall Street outbreak or two, and even a long-past conclave of followers of noted American Communist theoretician Herbert Aptheker. There, I have personally observed all manner of nationalistic and patriotic imagery, including modern American flags, historical reproductions of colonial varieties and other representations of the hallowed stars and stripes in red, white and blue and rendered in a variety of configurations and shapes; and not just the traditional rectangular edition. I have never heard a complaint from any quarter that the presence of such an out-of-the-ordinary image was a prohibited exercise of constitutional freedoms by any individual or group in either a private or public setting.

I have also seen the complained-of image in a variety of settings across the political spectrum; from the fields of The Woodstock Festival of Music and Art in 1969 to rallies in support of the Second Amendment in the present day. In my considered opinion, no festival organizer, present-day gun rights activist or national or regional incarnation of a singular and unitary entity defined rather loosely and quite inaccurately by the mainstream media as "The Tea Party" has ever formally or legally assumed exclusive rights of use to the complained-of flag or any permutation of it. Not one.

How the administration concluded that the image belongs to any private party or entity is a profound mystery. Perhaps a Freedom of Information Law (FOIL)-driven perusal of relevant officials' emails would betray the origin of this outbreak of mass-hysteria. If the vexatious conduct can be traced to the desperate partisan machinations of current New Rochelle mayor and aspirant for the post of Westchester County Executive, Noam Bramson, then indeed, his greatest, most lasting contribution to the Queen City of the Sound's once-proud record of historic significance may be revealed to be this sordid, unprecedented assault on the First Amendment to the Constitution.

(This commentary is offered by the above-signed: as a private citizen to be helpful to friends in the local veterans' and patriotic communities; and, as a proud citizen of the City of New Rochelle, the home of Thomas Paine, an early pamphleteer and defender of a libertarian American republican democracy. The author does not presume to act in the capacity of an attorney for the furtherance of the interests of any individual or organization or against the interests of any individual or organization).

Commenting on this Blog entry is closed.

Brian Sussman on Tue, 04/09/2013 - 05:52

Steve, you miss the point.

This is not an issue of whether posting a flag, or other icon, possesses constitutional free speech rights.

Nor is it an issue as to whether such an icon has copyrights involved, or is in the public domain.

Rather, the entire question is whether a private citizen or non-governmental entity has the right to unilaterally raise a flag or post a sign, or paint graffiti, etc., on public property, without the permission of the executive who administers that public property.

The same issue occurs when someone unilaterally raises a flag or posts a sign, or paint graffiti, etc., on private property, without the permission of the owner or executive who administers that private property.

This is an issue, not of free speech, but rather of public and private property rights.

New Rochelle is a municipal corporation, existing solely under the NYS Constitution. NY State itself, exists under the US Constitution, and therefore possesses a wide latitude of legislation and local code.

The 14th Amendment does create Federal Civil Rights under State Law, and is enforceable in USDC SDNY pursuant 42 USC 1983, if one can prove that an entity violated the 1st Amendment under false color of NY State Law. But the Federal Courts would certainly determine that our City Manager has the right to remove flags from New Rochelle public property.

I am astonished that you raise the issue of the Gadsden Flag for several reasons, as follows:

I thought you were a conservative.

Conservatives tend to value property rights over symbolic free speech. You are doing the opposite.

Based on your argument, I guess you'd have no problem if an anarchist burned or fouled his own American Flag on the property of the Armory or on the property of City Hall.

Also perplexing is why conservatives would feel connected to the Gadsden Flag, or to the Boston Tea Party?

Certainly, it was the liberals who created and won the American Revolution, some of whom used the Gadsden Flag. It was the conservatives who were the abhorred Tories, loyal to King George III, and who used the UK’s Union Jack. After the Revolution, the good, liberal people of New Rochelle took much private property from the local conservative Tories, and gave it to Tom Paine, which is the only reason he lived in New Rochelle.

Likewise, it was America’s conservatives who ran and supported the Confederacy, and who railed against Lincoln, during the Civil War. It would be more fitting for a modern conservative to advocate raising the CSA Stars and Bars Flag at the New Rochelle Armory, rather than the Gadsden Flag. Steve, would you deny our City Manager the right to remove a Confederate Flag raised by someone at our Armory?

How about if someone raises a Confederate Flag at an Armory in Little Rock? Personally, I don’t think any governmental entity within the USA should be able to raise a Confederate Flag on any public property anywhere in the USA, except for the purpose of ceremonial Civil War reenactments.

But the issue regarding our Armory, remains one of Public and Private Property Rights usually trumping Free Speech, thanks to the precedents set by conservative Judges and Legislators throughout the history of the USA.

willyrand on Tue, 04/09/2013 - 18:49

1. You're trying to equate a flag with graffiti and signs.
2. Private property rights are for private property. This is government owned. Yes, conservatives not only tend, but do value PRIVATE property rights. Liberals seem to lump private and public all into one. Some of your rights end when you're on private property. When a private university says you can't hand out condoms on campus, liberals argue about free speech and other garbage. They don't care about private property. There is a huge difference between open to the public and publicly owned.
3. Any of your other arguments are meaningless when you can't distinguish between public and private.
4. If you're saddened by conservative judges upholding private property rights, can I come fly a flag on your property? If no, why not? I'll help you out. Because my free speech rights end at your property line. "You have free speech, but I don't have to supply you with a megaphone." My Black Israelite friends and I would like to give speeches on your property on Saturday. Please give me your address so we can exercise our free speech rights on your property. Thanks.

Brian Sussman on Tue, 04/09/2013 - 20:53

Willyrand, you state that I'm trying to equate a flag with graffiti and signs.

You are correct in that statement, as I am trying to equate all icons, including but not limited to flags, signs, graffiti, religious symbols, etc. Use of such symbolic speech is protected by the US Constitution First Amendment.

But American legislation, Federal and State Courts, all have repeatedly determined that our various civil rights do have limits.

I personally disagree with some of those decisions. But I do recognize that when one takes a specific civil right to an extreme, it tends to violate another civil right.

Free Speech is certainly a civil right that the courts have long put limits on, such as when speech creates a "clear and present danger". The Courts have also determined that Free Speech is also limited when it violates property rights.

The typical example is "yelling fire in a theater". If one ignores the aspect of doing so, inciting a riot, the other issue is that a theater, like the armory, is a public place (even if privately owned). You can hang around in your own home yelling fire all you want, because it is your home, but when you yell fire in a theater you are disturbing others on property you do not own or administer.

Likewise, you can hang the Gadsden Flag, or a Confederate Flag or a Nazi Flag, or a flag with Mickey Mouse's face in your home. But you cannot hang any of those on public property or private property without the permission of the administrator of such property. Obviously, chaos exists if there is no protection of property rights.

I must point out that the Gadsden Flag was never a flag of our country under the US Constitution. Rather, it was used for a short period of time by a few ships in our tiny Navy under the Second Continental Congress, our national government prior to the Articles of Confederation which itself was in effect only prior to our current Constitution. Essentially, we are in our third or fourth republic since the creation of the Declaration of Independence. Under the the US Constitution, all of our National Flags have always been the Stars and Stripes.

Actually it is the conservatives, not the liberals, who tend to lump private and public property together. And it is the conservatives who tend to limit civil rights (except for the 2nd Amendment).

But liberals tend to extend the protection of Public Property, while conservatives tend to extend the protection of Private Property. Until 1865, many American conservatives thought that it was OK to completely eliminate Civil Rights for certain classes of people, such as African-Americans, and to designate humans as Private Property owned by other humans, ie. slaves.

Likewise modern liberals believe that the use of Private Property should be regulated to protect our environment from pollution, whereas modern conservatives believe it is ok to pollute public property, if the Oil or Nuclear Industries can make some money risking doing so.

I am not saddened by the Courts limiting your right to post your icons on my property, nor limiting my right to post my icons on your property. I believe that is the correct decision.

I do believe people have the right to peacefully demonstrate on public property, but not on private property unless with the permission of the administrator of that private property.

I'm always amazed at the existence of the so-called 'Black Israelites', as they actually are neither Israelites nor Jews, nor do they recognize actually Jews as Israelites. In fact, except for Jews and Samitaritans, all the other Israelites disappeared from history about 2500 years ago, and even the Bible is consistent with written history on that matter.

I must mention here, you totally misunderstand and hsve reversed what I have written, as you mistakenly think I am advocating your right to demonstrate or place icons on private property without the permission of the owner or administrator.

What I actually have written is the reverse, and that you have no right to place your icons or to demonstrate on private property without the permission of the administrator.

In comparions, you have no right to place your icons on public property without the permission of the administrator. But you do have the right to peacefully demonstrate on public property.

Robert Cox's picture
Robert Cox on Tue, 04/09/2013 - 13:01
Title: Try again

Brian

Your entire "argument" is predicated on your attempt to define the issue of "a private citizen or non-governmental entity" having "the right" to unilaterally raise a flag...on public property, without the permission of the executive who administers that public property.

[I'm going to set aside the nonsense that seeks to equate the raising of an American flag with graffiti or that anyone not a liberal is a conservative is a Tea Party member or that a conservative today is equivalent of a Tory or a Confederate sympathizer.]

Absent from your argument is a rather important point which I would like you to address.

The American flag that currently flies over the Armory today was purchased by and raised by the United Veterans Memorial & Patriotic Society of New Rochelle in a ceremony authorized by the City Manager.

The City of New Rochelle has chartered the United Veterans for decades to manage monuments and memorials to our veterans and war dead.

This is a particular organization, chartered and funded by the City of New Rochelle, authorized by the City's chief executive, not a random group of individuals who trespassed on City property.

If you can build a case against the Gadsden Flag being raised at the Armory predicated on these indisputable facts then we can have a serious debate.

Please try again starting from the point of fact not hyperbole.

Brian Sussman on Wed, 04/10/2013 - 00:25

Bob,

There is only one American Flag. It consists of 13 alternating red and white stripes. In the corner is a blue field with 50 stars, and has been our flag since 1960. Prior to that, for a few months we had a similar flag but with 49 stars. Prior to that, going back to 1912, we had the flag with 48 stars, used in WWI, WWII and the Korean War. Prior to that we had the same flag but with less stars, throughout the existence of our republic under the US Constitution.

However, the obscure Gadsden Flag was never the flag of the USA, but rather was used as a Naval Flag on a few small boats at the very beginning of the American Revolution. It was never used under our most recent two republics, under the Articles of Confederation and the US Constitution. Anyone who refers to the Gadsden Flag as ever being the official flag of the USA is mistaken.

However, I do see the relevance of the obscure Gadsden Flag being associated with a naval armory.

What I don't understand is, what is symbolic signficance of the Gadsden Flag to Steve Mayo, Bob Cox, or to whoever raised that flag at our armory.

However, being that the Gadsden Flag is not the flag of the USA, NY State or New Rochelle, it is very much the equivalent of any other posted icon whether it be any unofficial flag, or a sign, or a creche or grafitti. Why do you think your favorite icon is more important than someone else's favorite icon?

And if your wish could come true, doesn't it mean that 100 people could raise 100 other obscure but historical flags at the armory, or on other public property? Doesn't it mean a person would be able to raise any flag, even a non-historical flag at the armory? Or do you think only free speech supporting your beliefs is appropriate?

You wrote "The American flag that currently flies over the Armory today was purchased by and raised by the United Veterans Memorial & Patriotic Society of New Rochelle in a ceremony authorized by the City Manager".

Did the City Manager authorize the United Veterans Memorial & Patriotic Society of New Rochelle to raise the Gadsden Flag or only raise the US Flag?

If the City Manager did specifically authorize the raising of the Gadsden Flag, then I am perplexed as to why he reversed his decision and would like to know the basis of his reversal.

However I believe neither the City Manager nor the City Council authorized the raising of the Gadsden Flag, and therefore the City Manager had the authority to remove the unlawfully raised Gadsden Flag.

This is not to say I agree or disagree with his decision itself. I have no opinion on that, at least partially because I don't understand the symbolic importance of the Gadsden Flag, to whoever suppports its raising at our Armory.

My gut feeling, is that somehow this is of some weird symbolic importance to the Teabaggers, although I can't imagine why that would be. Certainly, our revolutionary Founding Fathers and Mothers would not find political connection with today's Teabaggers and would probably despise them.

I am very sympathetic to Vets. My father was 90% disabled from the landmine that blew up in his face on Nov 22, 1944, in Germany a few weeks before the Battle of the Bulge. Within a few weeks of that, my father's youngest brother Burt, was killed by Germans, only a few months after he had graduated Albert Leonard HS, making him the first 18 year old drafted in Westchester to get killed in WWII. My uncle Burt's name is on the plaque of killed Vets, on the property of NR City Hall. I myself could have been drafted for Vietnam, and I certainly have known several Vietnam vets, all of whom were at least mentally damaged by that absurd war. I was friendly with paraplegic Vietnam Vet Ron Kovic ('Born on the 4th of July') when we were in college in the early 1970's.

I still think the issue here, is not free speech. It is clearly, one of government administration of public property. Whatever you might think of Chuck Strome's decision, he was legally able to make it. I don't see how anyone can argue he violated anyone Free Speech rights. Rather the issue, is why was the Gadsden Flag raised at the Armory and why did our City Manager think it inappropriate?

You might be able to convince me, if you could at least explain why anyone would want to raise the Gadsden Flag at the Armory, or for that matter at any other location. It would be appropriate, raising it on a replica of one of the few naval ships that actually did use that flag.

Robert Cox's picture
Robert Cox on Wed, 04/10/2013 - 13:01

Brian,

You wrote "You might be able to convince me, if you could at least explain why anyone would want to raise the Gadsden Flag at the Armory, or for that matter at any other location."

But you also wrote "I do see the relevance of the obscure Gadsden Flag being associated with a naval armory."

Since you DO see the relevance or raising the Gadsden Flag at a naval armory and the New Rochelle Armory was a naval armory, you are already convinced.

So we have found a point of agreement.

Bob McCaffrey on Tue, 04/02/2013 - 14:01

Why does everything have to be conflict and fight?

New Rochelle cannot continue down the same path of self-destruction and implosion. The City of New Rochelle has been pushed to the brink of disaster in all areas. It is time for this City Council to step up and govern as they promised when elected.

Now, with a new season of possibility and promise upon us, there’s much more we can do. By enhancing partnerships with communities throughout the region, we can deliver greater value in exchange for every dollar and chart a course of fiscal sustainability. And through forward-looking planning, we can strengthen our business climate, improve our environment, and help more people achieve their potential. Sounds familiar doesn’t it!

The New Rochelle City Council follows the process du jure when making decisions in New Rochelle, usually driven by personal feelings or agendas. When decisions are made for all the wrong reasons they fail. Take politics and personal growth out of the everyday running of our city. Make the right decisions, have conversation.

The writings were so correct. True discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. There must be opportunity for full discussion. Discussion you know, an act or instance of discussing; consideration or examination by argument, comment, etc., especially to explore solutions; informal debate.

The process by which we govern is flawed. The result of such actions continues to be that of confrontation, debate, petitions, hearings and a lack of true input by the community which City Council you were elected to represent. The community should be put first at all times. The discussions should have started long ago. It needs to be put on record at the next City Council Meeting as a discussion item. We need to follow the City Charter and work on a review of our code of ethics and make sure what needs to be and should be done in New Rochelle is being done and the charter followed. Perception is everything. New Rochelle is perceived as failing!

“Common sense for the Common Good”

Brian Sussman on Wed, 04/10/2013 - 04:25

New Rochelle needs a City Council consisting of seven Council Districts, and with no At-Large Member.

A Mayor is elected At-Large, and should be the Elected Chief Executive of New Rochelle, directly responsible for administrating our city.

The Mayor should be elected in the odd-number year alternating between the odd-number year that Councilmembers are elected in, all for four year terms.

By doing this, the citizens will have a local election every two years, alternating between City Councilmembers and a Mayor.

I strongly believe that American Democracy requires three branches of government, but New Rochelle only has two elected branches, because the City Manager is an appointment by the legislative City Council, leaving the voters without any choice as to who administrates our city.

And without an elected Chief Executive, there is an important political tension lacking, between the legislative and executive branches of government, to balance power.

I think Chuck Strome is a very good City Manager, and in no way is this a criticism of him. It just that if he wants to run New Rochelle, he should be elected by the voters to do so, and for terms of four years each. The same thing should be true of any future Chief Executive of the City of New Rochelle. That elected Chief Executive might as well have the title of Mayor.

Ken Lewis on Wed, 04/10/2013 - 14:24

Brian I don't think anyone currently mentioned would support your correct assessment of how to tweak our local Govt.
Why would the Mayor he can play Ceremonial at Will and not really have his negative stick all while manipulating local govt quite Machiavellian.
The City Manager and we disagree as to his competency being between a rock and a hard place seems to either take on the role of City Manager relegating Noam to ribbons and Weddings at City Hall or continue to take the temperature and allow the stupidity to thrive. A City Manager with a Pair could fix our problem. Strome prefers to act weak and helpless in the shadows of Noam's will. He gets to them tell everyone it wasn't me.
City Council we have 3 Dems providing Noam 4 votes and 2 repubs sharing the useless role of Michael Boyle. Only when the stupidity rises very high do we see any balance in our Govt. See Comm Carol tried to hoodwink City Council. That was the only time it occurred in recent times.
Although I agree we need wholesale changes in Local Government I can not see it supported by the business as usual group above.
It will take a groundswell to affect any change. These guys seem comfortable in their roles.

Martin Sanchez's picture
Martin Sanchez on Mon, 04/01/2013 - 15:55

Whitney v. California, 274 U. S. 357 (1927 is a defense of freedom of speech written by Justice Brandeis. It should be read by Legal Counsel to the Mayor and City Manager. Please do not view the act of our Veterans a small act, but view the act of the Mayor as a huge unconstitutional and unpatrotic act. The quote below from Justice Brandeis is a reminder of why we must continuously speak and speak up despite the travails of the City Manager and Mayor in behaving like Senator Joseph McCarthy. Does the Mayor think this issue will disappear? d you not get it that by your act here, you are trampling on the rights of all New Rochelleans?

"Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

Martin Sanchez

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