The Minnesota Court of Appeals said Monday that a Wright County man was denied his free speech rights when he was fined for flying a huge Donald Trump flag from atop a 150-foot-tall crane.
The court reversed a finding by the Buffalo City Council, which had said in spring 2021 that Jay A. Johnson's 30- by 50-foot flag that read "TRUMP 2020 Keep America Great" violated the sign ordinance for its excessive size and being installed on property without a permit.
Johnson, whose property in Wright County provides storage for his Johnsonville LLC construction business, should have been allowed to fly his flag because the city ordinance does not apply to noncommercial speech, the court said in its ruling for reversal of the council's actions.
Further, the court ruling continued, "we conclude that the ordinance impermissibly creates a content-based regulation of speech, and [we] reverse the city's decision to impose administrative penalties against Johnsonville. [The] penalties imposed by the city are based on an erroneous theory of law and must be reversed."
Johnson's attorney, Aaron Dean, said Monday that "we are very thankful for the ruling by the Court of Appeals. We believe one of the bedrock foundations in this country is you can't publicly punish someone for their political speech. … We are hopeful that the appellate ruling will allow the mayor and the City Council to reconsider the harassment of Jay Johnson, his family and his company."
An attorney for the city did not return a message Monday seeking a response to the appellate court's ruling.
Dean would not hazard a guess about whether the city would ask the state Supreme Court to hear the case. "We hope the city and Mr. Johnson can meet and come to a compromise."
Since the council acted against Johnson's Trump flag display, the city fined him $600 at the outset. Also, Johnson said Monday he's been fined and continues to be fined $200 a day since September for replacing the crane with a 189-foot-tall flag pole that flies the American flag.
During a City Council meeting in May 2021, City Attorney Susan Dege defended the actions against Johnson, saying, "There are free speech rights, however, the Supreme Court has analyzed in several cases what a city can do. The city can't focus on a message … but what the city can do is regulate the time, place and manner of when signage is allowed."
At that same council meeting, Johnson pledged he would take his flag fight to court, and "I'm going to win. I don't want to do that, but, if I have to, I will."
The flag went up before the 2020 presidential campaign on a crane bought specifically for that purpose, Johnson said. After Democratic challenger Joe Biden was declared the winner over the Republican incumbent, police came by and told Johnson he had 10 days to take the political sign down, he recalled in an interview Monday.
"I told them, 'You know, the election ain't quite over. Can you call Pennsylvania and Georgia and tell them to hurry up with the election [results], so I can take the flag down?' " Johnson said. "They didn't find that too funny."
Johnson, who lives in nearby Montrose, did remove the flag but soon reconsidered and had it flying anew by April 2021, he said, recalling a gesture of support coming his way soon afterward.
"A woman drove up, and I stopped her," Johnson said. "She was crying. She rolled the window down and said, 'Thank you for putting that flag back up. It gives me hope.' "
At other times in 2021, Johnson flew an even-larger Trump/JFK Jr. flag atop the crane. Asked why the name of John F. Kennedy Jr., who died in a plane crash in 1999, was included with the former president's, Johnson echoed the belief of some far-right conspirators and said, "He's the vice president. You haven't seen his body, correct? Well, I didn't see it."
Buoyed by the court's ruling in his favor, the 55-year-old Johnson said he intends to raise a Trump flag within the next two weeks and is planning an event to mark its return.
"We all owe a debt of gratitude to Jay Johnson for having the courage and the grit to withstand public ridicule in his own town," Dean said, "and to incur significant legal fees to fight for what is right."
