Just years after fighting for people’s right to burn the American flag, Deborah Ross, then an executive at the American Civil Liberties Union, rejected a plea for help from a disabled Vietnam veteran fighting for his right to fly the American flag on his property.
Ross, a Democrat running for U.S. Senate in North Carolina, was executive director of the ACLU’s North Carolina affiliate when she received a letter from Robert McClure alerting her about legal action to stop him from flying the American flag on his property.
"I have made it clear that I will not submit to the removal of my flag and pole, and That I am willing to protect my rights with what ever means needed," McClure wrote in an April 2001 letter to Ross. "I am however only one person standing alone at this time and I need help."
Ross, who had been with the ACLU since 1994, had been a steadfast supporter of free speech issues involving the flag.
Ross fought legislation in 1995 that would have outlawed desecration of the flag, saying "we have a First Amendment right to burn the flag as symbolic speech." She said efforts to take away that right were "ridiculous."
The North Carolina ACLU celebrated the defeat of the "proposed constitutional amendment to ban desecration of the flag" in 2000 on its website, calling it "a tremendous victory for free speech and the Bill of Rights." The site also praised the "pivotal role" veterans played in defeating the amendment.
However, Ross and the ACLU decided not to help McClure.
McClure, who died in 2012 in a veterans hospital according to public records, said he received a letter from lawyers notifying him that he was violating multiple deed restrictions, which included having a flat roof on part of his home and having a fence in front of the home.
McClure told the ACLU he was never informed of restrictions on the property and that he would not have purchased the property had he known about them. He complied with the fence and roof restriction, but refused to take down the flag.
"Trying to be fair as I could, I complied with the fence restriction and the roof at further great expense to me," he wrote. "I refused to take down the Flag I served for and fought for."
McClure wrote that the property manager’s actions amounted to "harassment" that was depriving his family of "the Constitutional rights of having the right to self expression and the right all Americans wish for to enjoy their dream home that they have worked so hard for."
"You can burn the American Flag but you can't fly it, what is that China?" wrote McClure, who noted that the flag was "mounted on a beautiful pole set in cement with flowers around it."
McClure's fight was put on the front page of a local North Carolina newspaper, which paraphrased a representative of the property company saying that the restriction was "in place to protect other subdivision residents from appearances or activities that might be offensive." McClure told the paper that he was "willing to go to jail to keep his American flag flying."
The ACLU informed McClure that it had "decided not to pursue a legal challenge in this matter" despite his opinion that his First Amendment rights were being violated.
"Although your constitutional rights may very well have been violated, it is our opinion that such a violation will be difficult to prove," wrote the ACLU in a late May letter. "Therefore, I regret to inform you that the ACLU-NC has closed our file on this matter as of today."
The ACLU said it lacked the "staff and resources" to take the case, but Ross’s future actions in the North Carolina House of Representatives indicate that the decision may have been made for other reasons.
In 2005, Ross hesitated to support legislation to prohibit jurisdictions from banning the display of the American flag on private property. Ross was concerned that "singling out the American flag for special protection probably would be unconstitutional" because it would be "discriminating against all the other little flags out there," in the words of a contemporaneous account.
Ross eventually voted for the bill, which passed nearly unanimously.
The Ross campaign did not respond to an email with questions about the McClure case and her current stance on the display of the American flag.
A campaign spokesman for her Republican opponent, Sen. Richard Burr, called the episode "another example of Deborah Ross’ radical tenure as the chief lobbyist for the ACLU."
"Ross will have to explain to the roughly 775,00 veterans in North Carolina—all of whom admirably signed on the dotted line to defend the flag and what it stands for—and other American patriots why she would allow someone to destroy our country’s flag, but won't stand up for someone who wants to fly it," said Jesse Hunt, a Burr campaign spokesman.
The Senate Leadership Fund, a conservative group that opposes Ross, said it is "appalling" that Ross didn't stand up for McClure in court.
"Deborah Ross is adamant about protecting the right to burn a flag, but couldn’t be bothered to protect someone’s right to fly a flag," said spokesman Ian Prior. "Veterans like Robert McClure stood up for our rights on the battlefield—it’s appalling that Deborah Ross wouldn’t stand up for him in the courtroom."
Ross’s work for the ACLU has long been considered a political vulnerability, and was used by her opponents during the Democratic primary.
"You look at her history, and she had to take positions that I don’t think the people of North Carolina would agree with at all," said Kevin Griffin, one of her Democratic opponents. "If she wins the primary, she will spend the entire general election defending every action she took as the director of ACLU."
During her tenure at the ACLU, Ross fought legislation that created North Carolina's sex offender registry and permitted public schools to display the Ten Commandments.