ROCHESTER — As a Rochester Housing Authority resident fights for permission to fly her Trump campaign flag outside her unit, area lawyers and free speech experts say she could potentially have grounds for a First Amendment case.
An RHA property manager took down Wellsweep Acres resident Kay Keenan’s Trump flag Monday following neighbor complaints. RHA officials say they have the discretion to do so because a clause in her lease prohibits flags and other decor from being displayed on the exterior of the public housing authority’s properties without written consent.
“On its face, it doesn’t close a door to a First Amendment problem,” said Buzz Sherr, a professor at the University of New Hampshire’s Franklin Pierce School of Law. “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.”
Greg Sullivan and Rick Gagliuso, two area lawyers specializing in First Amendment issues, agreed.
“The government, in this case the housing authority, can impose reasonable time, place and manner restrictions on speech. Period,” said Sullivan. “However, those restrictions must be content neutral.”
Keenan is seeking permission to exercise free speech through an appeal of the RHA’s decision. Her appeal wasn’t scheduled as of Thursday. RHA Executive Director Stacey Price will schedule the appeal next week when she returns from a leave, according to Jerry Grossman, RHA’s attorney.
Keenan has claimed the housing authority hasn’t removed other “miscellaneous” flags flying outside units in Wellsweep Acres. Sherr said one of the first steps in a potential First Amendment lawsuit would be to file Right to Know requests to help gauge whether RHA’s policy has been enforced neutrally or selectively.
Grossman has defended RHA’s policy, describing it as a blanket one that is applied to all of units and prohibits all political flags.
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.”
According to Grossman, the RHA does permit American flags to be flown on or outside its units. He has said residents also have the right to drape other flags and signs inside their windows for everyone outside to see.
“It’s spelled out in the lease agreement,” he said. “Your unit is what you rent. You don’t have control of the outside. It would be like you going to City Hall and wanting to put banners up outside. It’s public property.”
News stories about Keenan’s Trump flag have prompted significant discussion and reaction in the local community and on social media.
They’ve come a few months after an Epping High School principal made headlines for asking a freshman to remove a “Make America Great Again” Trump shirt she was wearing during a school spirit day. The district’s superintendent later apologized, stating undisclosed and nonpublic “appropriate action” would be taken.
When asked to respond to the Keenan matter, state Sen. David Watters, D-Dover, said he’s “very wary” of any limits placed on a person’s ability to express political views.
He said he hopes Keenan’s desire to fly her Trump flag can be accommodated.
“It is public housing ... but it’s her home,” said Watters. “I hope somebody can find some (way) to allow First Amendment speech to take place.”
Jim Gray, who is Rochester’s state senator, a Republican and one of the two city councilors overseeing Keenan’s Ward 6, didn’t comment.
State Rep. Steve Beaudoin, R-Rochester, said he agrees with RHA’s flag prohibition if it’s enforced fairly.
“Can you imagine if they didn’t have that policy?” said Beaudoin, a local landlord who said the situation with Keenan’s flag may inspire him to add similar restrictions into his own lease agreements. “You’d drive through there and see 30 different signs or flags on the lawn.”
Beaudoin said he believes any flags that could have a political message attached to them should be restricted on public property. He specifically described the rainbow LGBTQ+ pride flag and veteran flags as examples of things that should be restricted.
“(The restriction) should be all inclusive,” he said. “No political signage, no political position.”
Gilles Bissonnette, legal director for the American Civil Liberties Union (ACLU) of New Hampshire, declined comment. He said he hasn’t had the capacity this week to look into the matter.
Emmett Soldati, chair of the Somersworth Democrats, said he supports Keenan being able to fly her Trump flag.
Soldati has encountered sign backlash and First Amendment issues of his own. In 2017 and 2018, multiple billboard advertisements he erected for his business, Teatotaller Cafe, were vandalized because of their playful wording and imagery supported LGBTQ+ inclusiveness.
“People everywhere should be allowed to let their freak flags fly,” said Soldati.
In response to a question Foster’s Daily Democrat posted on its Facebook page asking readers to weigh in, most of the respondents said RHA is right in restricting Keenan due to the lease’s terms, so long as the rules are being enforced equitably.
“If they’re being unbiased in who they disallow to display political paraphernalia, then this shouldn’t even be news,” wrote one reader.