It appears the Rochester Housing Authority may have overstepped its bounds with its efforts to stop resident Kay Keenan from flying a flag in support of President Donald Trump.
Keenan has been asked multiple times by property management at Wellsweep Acres to take down her Trump 2020 campaign flag. Early this week, the flag was taken down by a property manager who rolled it up at her door and left her a note asking her not to put it up again.
The policy being cited by RHA’s lawyer may be legal, but the implementation of the policy may not have been equal, possibly resulting in a First Amendment problem for the RHA.
The lease agreement reads: “All areas of the property outside of the apartment are to be considered common space and as such, no items of any kind are allowed to be exhibited by a tenant on any part of the outside or inside common space of the building(s) or placed on the grounds of the property without prior written consent from the office. These items include, but are not limited to, the following: signs, advertisements, notices, banners, flags, storage structures, sheds, [...], etc.”
The problem for the RHA is it has been allowing residents to hang American flags, according to Keenan, who said other “miscellaneous” flags have been allowed, too. RHA attorney Jerry Grossman said Keenan and all residents can hang any flags they want on the inside of their apartments, including in windows, but they don’t rent the outside of the property. However, when asked about the American flags, he said having an American flag outside the building wouldn’t represent any specific cause, adding, “If they asked me if it was OK to have a U.S. flag, I would say that would be OK.”
That’s where the RHA could have trouble defending itself. If the American flag (and others, too, if Keenan is correct) are allowed, the RHA has put itself in the position of judging which flags are OK and which are not.
Experts our reporters talked to this week said the key to a policy that does not violate the residents' First Amendment right to freedom of expression is it must be “content-neutral.”
Buzz Sherr, a professor at the University of New Hampshire’s Franklin Pierce School of Law, said, “If the housing authority is saying, ‘No political flags whatsoever,’ their discretion is being exercised in a content-neutral way (and) then it’ll be OK. … It depends on how they exercise the discretion, and what kind of signage they’re allowing or not allowing. Everything or nothing is OK. If it’s selective, that’s a problem.”
We certainly understand the RHA is in a difficult position as a local agency that needs to have fair policies and treat everyone the same.
Let's hope there can be an amicable solution where all residents feel their First Amendment rights are respected and this matter does not need to go to court.