Activist: York County denial of permit to burn flag violates First Amendment

David Weissman
York Dispatch
Activist Gene Stilp (left) prepares to burn a hybrid Confederate-Nazi flag outside the Luzerne County courthouse Nov. 16, 2017. Stilp will bring the demonstration to York County on Wednesday, Nov. 29, 2017. Photo courtesy of Gene Stilp.

A Harrisburg activist who was denied a permit for plans to publicly burn a hybrid Confederate-Nazi flag filed a lawsuit against York County on Tuesday, Jan. 16.

Gene Stilp had planned to hold his demonstration in late November outside the county courthouse, but he postponed after receiving a permit denial letter from county solicitor Glenn Smith.

Stilp, who has held similar flag-burning protests outside other county courthouses and at NASCAR races, presented his lawsuit to county commissioners during their bimonthly meeting Wednesday, Jan. 17.

The federal lawsuit claims that the county's ordinance that Smith cited in his denial letter is infringing on citizens' rights under the First Amendment of the U.S. Constitution.

The ordinance requires that "any person who desires to congregate, assemble or use county property" must make such request in a letter at least 60 days in advance of the desired time of use and include a check for $100.

More:County denies activist permit to burn Confederate-Nazi flag in York City

More:EDITORIAL: No hiding story of Confederate flags

The ordinance was enacted in 2002 in response to the Sept. 11, 2001, terrorist attacks to place restrictions on use of county property by individuals or groups "likely to create clear and present danger to the public safety and welfare."

Stilp said Wednesday that the ordinance is a violation to the First Amendment "in so many ways," including imposing restrictions to assemble based on a group or individual's message, vague rules and outdated references.

For example, the ordinance states that county properties will be closed to people or groups found to present clear and present danger to the public during a Homeland Advisory System of yellow or higher by the director of the Department of Homeland Security.

The department replaced its color-coded alert system in 2011, according to the department website.


Stilp said he believes the county needs to completely scrap the ordinance and create a new one, while allowing him to hold his demonstration in the meantime.

In a statement to The York Dispatch, Smith wrote that prior to the lawsuit, Stilp never asserted that the ordinance was unconstitutional.

"Mr. Stilp only requested that the county waive the ordinance requirements to obtain a permit to conduct his event," Smith wrote. "Mr. Stilp was informed that no waiver would be granted so as to ensure an equal application of the law to all permit applicants."

Smith added that his office will review Stilp's claims, analyze their validity and determine the proper response.

Stilp said he's never previously encountered any difficulties from other county commissioners getting a permit to hold his demonstration.

"This lawsuit will benefit me, but it will also benefit everyone in York County by taking away this permit process that is overly cumbersome," Stilp said.

Stilp won a federal lawsuit in 2010 against the state Ethics Commission after it had fined him for publicly discussing a complaint he filed against a legislator.

The court found that the state law preventing private citizens from publicly discussing their complaints was unconstitutional.

— Reach David Weissman at or on Twitter at @DispatchDavid.