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Driggs to consider adoption of a new lighting ordinance.

Decision Makers: Driggs City Council

Topic: Driggs to consider adoption of a new lighting ordinance.

July 16, 2012

Driggs City Council

60 South Main Street

Driggs, Idaho 83422

Dear City Council Members:

I apologize for submitting these comments so late. Tonight’s hearing was not posted on the City’s website, and only the older version of the proposed lighting ordinance was posted online. Thus, as soon as I was notified of tonight’s hearing, I reviewed the current draft of Ordinance 333-12 given to me by Doug Self and hurried to submit these comments.

The key to a good lighting ordinance is one that is clear, unambiguous, and not open to various interpretations.  It is clearly not the intention of this Council to overreach into regulating an individual’s right to freedom of expression.  However, when I reviewed the latest draft of the Driggs Lighting Ordinance, I interpreted the plain language of the flag provisions in section § C-2-a-ii to prohibit the illumination of all flags except the U.S. flag or Idaho state flag.  Flying a flag is a form of speech, and this section appears to restrict this form of expression regardless of whether the flag is on public or private property.  For the reasons put forth below, I believe this section violates the speech protections provided by the First Amendment.

 Flying a flag is a Constitutionally protected form of speech

Flags are a wellrecognized from of communication that is protected by the First Amendment.[1] The expression of ideas through flags cannot be prohibited simply because the ideas are offensive to some listeners.[2]  The government has certain supervisory powers to regulate communication in public forums, but much less so in private settings.[3]  The U.S. Supreme Court has repeatedly held that “[r]egulations which permit the government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.”[4]  When it comes to private property, there is a very strong presumption that regulating the content of a citizen’s private speech on private property is unconstitutional.[5]

Here, the intent of Driggs Lighting Ordinance is to curtail light pollution, which is admirable.  As written however, the plain language of the ordinance appears to regulate the expression of an idea through an activity – the flying a flag.  The ordinance regulates the content of what is being illuminated.  It only allows governmentmandated messages to shine at night, which in this case, can only be either a national or state flag.  Thus, the ordinance is not ultimately regulating light pollution, but is effectively regulating speech – even on private property.  For these reasons, this section of the Driggs Lighting ordinance should be changed because it appears to unconstitutionally restrict speech.

Suggestions for Amending the flag exemption

There are several ways this section can be changed to no longer violate the free speech protections provided by the First Amendment:

·      Suggestion 1: One option would be to not regulate on the basis of content at all, and either permit all flags to be illuminated, or prohibit all flags from being illuminated.

·      Suggestion 2: Another content-neutral suggestion would be to simply allow for the down lighting of all flags.  This would still allow for compliance with § 174(d) of the U.S. Flag Code which requires that if a U.S. flag is to be displayed for 24-hours a day, it must be “properly illuminated during the hours of darkness.”  The Flag Code does not require that a flag must be up-lit at night; the down lighting of flags is also compliant.  Of course, flag owners also have the option of simply taking down their flag at night.

·      Suggestion 3: One other middle ground option would be to simply prohibit the illumination of commercial flags. Commercial speech is less protected form of expression and may be regulated in ways that noncommercial speech cannot be restricted.[6]  Local governments can regulate commercial speech so long as the regulation is no more expansive than necessary to serve the substantial government interest.[7]   Teton County recently grappled with this same flag issue in their dark skies ordinance, and they chose to allow for the illumination of all non-commercial flags.  The logic was that most illuminated flags in Teton County are commercial subdivision flags, and the government has a substantial interest in protecting dark skies.  Since the goal of the ordinance was to curtail light pollution, Teton County determined that prohibiting the illumination of commercial flags was a narrow means of achieving this goal.

It is very easy for local governments to wind up in sticky situations when it comes to regulating speech. Fortunately, I think any one of the options outlined above is a simple remedy to this potential problem.

Thanks again for all of your hard work and consideration in the service of our community.

                        Sincerely,

                                                  /S/: Anna Trentadue

                                                  ________________________

                                                Anna Trentadue

                                                Valley Advocates for Responsible Development      

                                                Program Director / Staff Attorney


[1] Flags have long been recognized as “a form of symbolism comprising a primitive but effective way of communicating” worthy of protection by the First Amendment. Spence v. State of Washington, 418 U.S. 405, 410, (1974); See also, Texas v. Johnson, 491 U.S. 397 (1989).

[2] ‘It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.’ Street v. New York, 394 U.S. 576, 592 (1969); Spence v. State of Washington, 418 U.S. 405, 412, (1974).

[3] City of Ladue v. Gilleo, 512 U.S. 43, 59 (1994); See also, Procunier v. Martinez, 416 U.S. 396,

(1974); Healy v. James, 408 U.S. 169, (1972).

[4] Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115116, (1991), quoting from, Regan v. Time, Inc., 468 U.S. 641, 648649, (1984). See also Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, (1972).

[5] “With rare exceptions, content discrimination in regulations of the speech of private citizens on private property or in a traditional public forum is presumptively impermissible, and this presumption is a very strong one.” City of Ladue v. Gilleo, 512 U.S. 43, 59 (1994), See also, Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115116,

(1991).

[6] “[C]ommercial speech [enjoys] a limited measure of protection, commensurate with its

subordinate position in the scale of First Amendment values,” and is subject to “modes of

regulation that might be impermissible in the realm of noncommercial expression.” Ohralik

v. Ohio State Bar Assn., 436 U.S. 447, 456 (1978).

[7] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

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