Editorial: Hartford should exercise caution on public display of affinities

An example of the

An example of the "Hometown Heroes" banners proposed for downtown White River Junction, Vt., that was part of the Hartford Selectboard's agenda package. (Courtesy Town of Hartford)

Published: 05-31-2024 9:01 PM

Modified: 06-03-2024 8:52 AM

The current controversy over the display of a politically-charged symbol at the home of U.S. Supreme Court Justice Samuel Alito comes at an opportune moment for the Hartford Selectboard as it continues to wrestle with the contours of a policy for displaying banners on municipal light poles. Opportune because it demonstrates just how difficult, if not impossible, it will be to strike a balance between residents’ First Amendment rights to free expression and the town’s authority to regulate banner displays.

It came to light last month that in January 2021, an American flag was flown upside-down outside the justice’s home — a symbol that had been adopted by the supporters of Donald Trump’s false claims that the 2020 presidential election had been stolen. In fact, some of the rioters who participated in the Jan. 6 attack on the Capitol carried upside-down American flags with them.

Alito claims that he had nothing to do with the flag display; it was entirely his wife’s doing. For her part, she contends that it was flown as “an international signal of distress” in response to objectionable yard signs erected by neighbors. We leave it to our readers to assess the credibility of the Alito explanation; it does not matter for purposes of discussion here.

The question for Hartford Selectboard members boils down to whether, if they approve a policy that allows for display of 12 banners celebrating the contributions of military veterans and first-responders as Hometown Heroes, they are prepared also to approve a request to fly the American flag upside-down, or the Palestinian or Israeli flag right-side up. Because almost certainly some such request will follow in the wake of the Hometown Heroes application by a local group.

A draft policy under consideration reserved to the board the right to deny banner displays it deemed offensive. But a series of U.S. Supreme Court decisions has made it pretty clear that municipalities are generally not permitted to discriminate among viewpoints when regulating public displays of flags, signs and the like. Their policies must be neutral as to the message conveyed, although they can regulate time, place and size of the display. We don’t believe that such a judicial preemption of local authority is necessarily wise, but it is what it is.

At the May 14 meeting of the Selectboard, members were contending with these complications when former board member and current Vermont Senate candidate Joe Major admonished them for taking so long to make a decision. “(Our residents) are all wanting you to make decisions,” he said. “Right now (you) are pontificating. Put something on the floor, make a decision and vote on it.” He urged them to ignore the risks of being sued “because any law or ordinance can be challenged at any time.”

That’s true, but there is legitimate reason to be worried about a lawsuit in this case. (And let’s hope Major, if he succeeds in his Senate race this fall, will not take to Montpelier this “run-it-up-the-flagpole-and-see-who-salutes” approach to legislation.) As we understand it, the law in this instance is a settled matter, and enacting an ordinance in defiance of it would leave the town without a strong defense in court. It is also a reasonable question whether the town could rely on its insurer to cover the costs of defending an ordinance that was enacted by the Selectboard while it had reason to believe it was constitutionally defective, potentially putting the taxpayers directly on the hook for legal fees.

Moreover, as recently as a couple of years ago town officials said privately that they did not even have enough money at their disposal to cover the legal costs of enforcing the provisions of the town’s Class IV road ordinance, which to some residents might seem a more pressing matter than banners.

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Selectboard Chairman Michael Hoyt told our colleague Patrick Adrian that he’s optimistic that the board will adopt a banner policy at its June 4 meeting. If so, the board should at the very least solicit a legal opinion as to its constitutionality before it goes into effect.

But we think Selectboard member Mary Erdi got it right at the May 14 meeting. “It seems like we are just inviting more disagreements, and it hurts the town,” she said. Indeed, Hartford is ground zero for contentious public issues in the Upper Valley. Issuing an invitation to more of the same would indeed be puzzling.