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Hate rally law is unconstitutional says man who wants to burn Nazi/Confederate flag

Written by Rick Lee/The York Daily Record | Jan 17, 2018 5:45 PM
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Activist Gene Stilp holds up a Nazi-Confederate flag before burning it outside the Adams County Courthouse in Gettysburg Nov. 17, 2017. (Photo: Dan Rainville, The Evening Sun)

(York) -- Anti-discrimination activist Gene Stilp is in the ironic position of challenging the constitutionality of a York County ordinance enacted to prevent the very things that Stilp is protesting against -- the promotion of hate and racism.

"The Nazi flag and the Confederate flag both stand for racial hatred, bigotry, death to American citizens and oppression," Stilp said. 

Last year, Stilp burned his combination Nazi/Confederate flag at or near courthouses in Adams, Perry, Columbia and Luzerne counties and at NASCAR tracks in Talladega, Alabama, Martinsville, Virginia, and Dover, Delaware, to draw attention to antisemitism and racism.

"The purpose of such demonstrations," Stilp said, "has been to convey ... that the continued display of the Confederate flag in a positive light can be as offensive to some members of the African-American community as is the display of the flag of Nazi Germany to some members of the Jewish community."

The paradox here is that the York County ordinance was enacted in 2002 to stymie hate rallies that promote discrimination and violence.

"That is interesting," Stilp said on Wednesday. "The only thing I can say is that I'm going by what the Constitution allows and this is what I am seeing at this point."

In January 2002, anarchists clashed with white supremacists who had chosen York as a rallying point. Police arrested 25 people during the melee.

In response, the York County commissioners unanimously passed an ordinance that prohibited the use of county and public property for any assembly that could create a clear and present danger to residents.

York County Solicitor Glenn Smith declined to comment Wednesday on the irony of Stilp challenging the constitutionality of the ordinance. Smith said the ordinance has not been challenged in court in the past.

Instead, Smith said that he was surprised when he was notified of Stilp's federal complaint.

Smith said that in previous communications, Stilp had only asked that the ordinance be waived for his flag-burning demonstration. That request was denied, Smith said, to maintain equal application of the law to others seeking assembly permits.

"At no time did Mr. Stilp assert the county ordinance was in violation of the Constitution, nor did he advise of his intent to initiate a lawsuit," Smith said. 

Smith said since the waiver was denied, there was no need to review the 16-year-old ordinance for constitutionality. He said that review now will be conducted in light of Stilp's complaint.

Written months after the Sept. 11, 2001, attacks the ordinance asserts that public assemblies could result in rioting or a conflict that would divert law enforcement and emergency services from responding to "terrorist attacks."

The ordinance, which applies to assemblies of more than 25 people, also requires anyone wishing to use public property to:

  • Apply for and obtain permission from the county;
  • Pay a $100 application fee;
  • Reveal any affiliation with an organization or identifiable group; 
  • Reveal the criminal history of the permit applicant and any planned speakers;
  • State whether the assembly will involve ethnic intimidation or the encouragement of discrimination or other unlawful conduct;
  • Provide information showing whether the applicant can be financially responsible for any damage resulting from the assembly.
  • Obtain the approval of the county sheriff, county district attorney and chief of police who has jurisdiction over where the assembly is to take place.

Stilp said he attempted to negotiate with York County before filing his complaint. 

"I believe the demonstration is so simple, that I wanted to try to negotiate," Stilp said. 

He said he believes the court will rule in his favor and the county will have to write a new public assembly ordinance that stands up to a constitutional challenge.

This story comes to us through a partnership between WITF and The York Daily Record

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