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“Don’t Tread on Me”: The Permissibility of the Gadsden Flag in Your Community

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Is flying the Gadsden flag (i.e., the yellow “Don’t Tread on Me” flag with a snake) considered a flag of the United States of America and is it permissible in your community association? It depends.

For those not already familiar, the Gadsden flag is a historical American flag named after the American General and politician, Christopher Gadsden, who designed the flag in 1775 during the American Revolution. Although it was considered one of the first flags of the United States, the Gadsden flag has been replaced by the current “Old Glory” flag with thirteen horizontal stripes, alternating red and white, and 50 stars.

The Florida Homeowners’ Association Act provides that a homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner, and one portable, removable official flag not larger than 4.5-feet by 6-feet that represents the United States Army, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, bylaws, rules, or requirements of the homeowners’ association. Additionally, a homeowner may also erect a freestanding flagpole no more than twenty-feet high on any portion of the homeowner’s property, provided that the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement.

The Florida Condominium Act, by comparison, permits a unit owner to display one portable, removable United States flag and, on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, to display a portable, removable official flag, not larger than 4.5-feet by 6-feet that represents the United States Army, Air Force, Marine Corps, or Coast Guard, in a respectful manner regardless of any provisions of the condominium documents concerning flags or decorations.

The “Freedom to Display the American Flag Act of 2005” (Pub.L. 109–243, 120 Stat. 572, enacted July 24, 2006) is an Act of Congress that prohibits community associations from restricting owners from displaying the flag of the United States on their property, although community associations may still reasonably restrict the time, place, and manner of displaying the flag of the United States. And, the “flag of the United States” is defined under Section 1, Title 4 of the United States Administrative Code as the current “Old Glory” flag. Accordingly, while the Gadsden flag is considered a historical American flag, it is not considered an official, current flag of the United States.

While the display of the Gadsden flag may not be protected under the Florida Homeowners’ Association, Florida Condominium Act, or the Freedom to Display the American Flag Act of 2005, it may still be permissible as a type of United States flag, albeit a historical one, in your community association depending on the provisions of your community’s governing documents. It is recommended that your community association confer with its legal counsel to: determine whether this flag is generally permitted under the governing documents; research whether it would be considered a permissible political flag under the local government’s land development code; and, if it is not a permitted flag or political sign, consider whether it would be an impermissible nuisance (e.g., the flag’s lit display unreasonably annoys or disturbs others) or unlawful pursuant to the governing documents and/or local ordinance.

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