OCEAN CITY – Resort officials say there is little they can do to address political flags that are displayed on the beach and Boardwalk.
During the public comments section of Monday’s Mayor and Council meeting, 18th Street resident Estella Santos came before elected officials to share her concerns about the placement of political flags on the beach and Boardwalk. While Santos argued the flags detracted from the ocean views, city officials said they could not restrict free speech.
“We do have a sign ordinance, but flags and political speech are not what that ordinance is about,” said City Solicitor Heather Stansbury. “So there isn’t an ordinance about these types of flags. Political speech has perhaps the most protection under the First Amendment. It is symbolic speech, it is political speech. There is nothing we can really do about it, or frankly should you, under the law.”
In her comments Monday, Santos said she was walking on the Boardwalk near 8th Street last week when she noticed political flags on both the beach and Boardwalk. When she removed one of the flags from the wooden step railings leading to the beach, an argument between her and the flags’ owner escalated to the point the police department was called.
“I am a very happy resident of Ocean City, and I don’t believe the city council wants to see the placement of these monstrous flags on our beautiful beach become accepted practice,” she said. “I conclude by asking the Mayor and Council to reconsider its policy of permitting the flying of political flags, or really any flags, on the beach. Additionally, I request the city council revoke the privilege of this person who has threatened me and threatens the safety of the residents and visitors of Ocean City. He should be stopped from flying his flags on the beach.”
When asked Monday about the town’s flag policy, City Manager Terry McGean said they could not be attached to the beach boxes or Boardwalk. He noted, however, that both the beach and Boardwalk were public spaces and are subject to free speech.
“We lost a case in the Fourth Circuit Court regarding the activities that could and could not occur on the Boardwalk. The beach is going to be treated the same way,” he said. “So the bottom line is it cannot be attached to the Boardwalk, but the flags are protected political free speech. So we could not restrict them, provided they are on the beach, not attached to anything, and they cannot be attached to the beach box.”
Simply put, Stansbury said there was little the town could do to control political speech on the beach or Boardwalk.
“As you recall, Judge Hollander out of the Fourth Circuit indicated that the Boardwalk was the quintessential public forum,” she said. “And by indicating that, she has broadcasted to us that we need to allow the First Amendment, however it may be felt about, to flow freely.”
Councilman John Gehrig said he was not concerned about the political messaging, but rather the proliferation of flags in public spaces.
“I’m not even thinking about the political side. They can do whatever they want,” he said. “But are we really going to be having a bunch of flags all over the beach?”
Stansbury said the topic of First Amendment rights and its protections, as it applies to the beach and Boardwalk, has long been debated in Ocean City.
For example, in 2018, a group of Boardwalk performers prevailed in their lawsuit against Ocean City, with the court striking down most of the provisions in the town’s busker ordinance as a violation of First Amendment rights. And in 2020, the town and its legal representation determined a large, vulgar sign displayed on the Boardwalk criticizing then Gov. Larry Hogan was free speech and could not be removed.
“You will recall years ago we had someone on the Boardwalk with what was like a sign he made with some words I think most found particularly vulgar, and it was directed at a particular politician,” Stansbury said. “And we had to endure that because we could not regulate that type of speech.”
Stansbury concluded that there was little the town could do from a legal perspective.
“It goes back to the First Amendment,” she said. “This is not territory that this council, under my advice, should get into, unfortunately perhaps. But it is protected speech, and it has been fought and fought and fought throughout the country for years, well beyond you or I.”
When reached for comment Tuesday, Santos said she disagreed with Stansbury’s position and planned to reach out to other beach towns regarding their flag policies.
“I’m for no flags,” she said. “You shouldn’t be able to come and pollute the beach with flags.”
