The Buffalo City Council held an appeal hearing over the controversial Trump/JFK Jr. flag flying over the city on Monday, May 17th, during its second council meeting of the month. The flag, which is 60ft x 40ft and replaced another 50ft x 30ft flag, dominates the Buffalo skyline, and has caused considerable debate in the community about both city ordinances and individual free speech rights.
The question came before the City Council after Jay Johnson, the owner of Johnsonville LLC which operates the property, appealed the city’s citation for code violations.
Johnson was originally cited with four ordinance violations, but one, pertaining to a non-permitted fence line, was dismissed, and two others, concerning a prohibited wood-burning stove and prohibited outdoor storage of construction materials, were tabled for later discussion.
City Attorney Susan Dege explained that pursuant to Buffalo City Code Sections 13.06 Subd. 1(f), 13.07 Subd. 1(c) and 13.06 Subd. 2(B), which regulate the size and manner of display for signs within the city, the flag is in violation of municipal sign ordinances, namely because the flag is too large, flying outside of the permit timeframe of election season, and being flown on a piece of construction equipment. The full Buffalo City Code is available here. Footage from the Monday, May 17th meeting can be viewed here.
“There are free speech rights,” Dege explained, “however, the Supreme Court has analyzed in several cases what a city can do. The city can’t focus on a message, but what the city can do is regulate the time, place and manner of when signage is allowed.”
Three notices of violation were given, each carrying a $200 fine. Johnson has not paid any of the fines while engaged in the administrative appeal process. The city is seeking a total fine of $600 for all violations incurred.
There was some debate surrounding the definition of a sign and whether the flag on the Johnsonville property meets that definition. The City of Buffalo defines a sign for code enforcement purposes broadly as, “Use of words, numerals, figures, devices or trade marks by which anything is made known such as individuals, firms, professionals, businesses, services or products and which is visible to the general public.”
Johnsonville’s attorney, Devlan Sheahan of Minneapolis, argued that the flag not only is not a sign, but that the city is trying to inappropriately regulate Johnson’s speech.
“I ask you to think about one fundamental principle,” said Sheahan,“that’s for a person to have their privacy. For a person to have the right to be in their home, on their property, and not be bothered. It’s a right that is most important when it touches on a person’s beliefs, ideology and principles.”
Sheahan continued, “The city is here trying to impose fines on Mr. Johnson and they are trying essentially to punish his beliefs, punish his viewpoints, and the mechanism for doing that is Section 13 of Buffalo’s city ordinances. What Section 13 regulates is the use of signage, and there’s a distinction. As English speakers, it’s pretty obvious to us that there is a distinction between a sign and a flag. Really it’s quite simple, what Mr. Johnson has on his property does not violate Section 13 of the Buffalo City Code because it is not a sign.”
Later, Jay Johnson addressed the City Council directly stating, “I’m a reasonable guy and I’d like to say that in the end you’re reasonable, but I really think that we’re going to take this to court and we’re going to do it the hard way and I’m going to win. I don’t want to do that, but, if I have to, I will.”
“You have the choice to either back away, or battle with me. I’ll do whatever I need,” elaborated Johnson.
Johnson also explained some of his motivations behind the flag. “The idea of putting the flag up is not to offend anybody. I told the police chief that the reason I put the flag back up is because when I put it back up a woman drove in, tears running down her cheeks, and she said, ‘Thanks Jay for putting that up again. That gives me hope.’”
Members of the public were given time to address the council on the matter as well. There were some tense moments when community members addressed the council and calls to regain order were occasional.
Some questioned how the city will enforce this provision of the City Code equally throughout the city, specifically addressing the many other flags and signs through the city. One woman pointed out that the 8 sq. ft. maximum for non-permitted signage within the city is often violated, explaining how a 5ft x 7ft American flag would far exceed that limit, measuring 35 sq. ft. It was noted that Minnesota and American flags are exempted from City Code provisions at private residences per state law.
Others spoke about feeling squeezed by the application of an ordinance they believe limits citizens’ freedom of speech and freedom of expression. No one from the public spoke at the meeting in support of the flag’s removal.
City Administrator Laureen Bodin said that of the about 200 comments the city has received concerning the flag, roughly half were in favor of the flag’s removal and roughly half supported leaving the flag as is.
After hearing input from the community, the City Council voted unanimously to follow the recommendation of City Attorney Dege and begin civil proceedings against Johnson seeking the flag’s removal and $600 dollars in fines for the code violations. The case will now be presented before a judge who will review the merits of each argument.
Photo by Matthew Scherber