From Staff Reports

Businesses in Asheville will have to be more careful about how they fly the American flag, as City Council passed an ordinance on Jan. 8 that would require businesses to follow federal rules on how to display the flag.

However, some critics of the requirements say the city is violating businesses’ First Amendment rights and that the law would not hold up in court.

Under the new rules, businesses are required to meet the regulations laid out in the U.S. flag code and could be fined up to $100 a day for violations.

Among the provisions of the code are requirements that flags be lit at night and that only all-weather flags be flown during inclement weather.

However, Robert Corn-Revere, a Washington-based attorney specializing in First Amendment law, says the city’s new ordinance is clearly unconstitutional because it regulates the content of business owners’ speech.

Assistant City Attorney Curt Euler disputes Corn-Rever’s claim, saying the ordinance falls within constitutional guidelines because it does not prohibit the flying of the flag. Euler cited a decision by the U.S. Fourth Circuit Court of Appeals that said cities can regulate the size of flags.

The changes were spurred by a conflict last summer between city sign-code enforcers and a TNT Fireworks business over the way it displayed flags above its tents.

Eventually, the city dropped the fines and agreed to pay for half the costs of the company’s appeal to the Board of Adjustment because the city’s rules needed clarification.

Councilman Carl Mumpower, who cast the sole vote against the new flag ordinance, said the city should not be creating new rules while it struggles to enforce existing ordinances.

The city has two full-time and two part-time employees charged with enforcing the rules, according to Shannon Tuch, city planning and development interim director.

Meanwhile, Ronald Collins, a scholar with the nonprofit First Amendment Center, said the law probably does violate the Constitution, noting that if burning the flag is protected, flying it at night without a light probably is as well.