September 20, 2012
This may seem like a relatively immaterial issue, but that question is at the center of a legal challenge being brought by the Sons of Confederate Veterans (SCV).
SCV is a “fraternal organization open to male descendants of Civil War soldiers who fought for the Confederate States of America.”
The “government-owned flagpole” in question belongs to the city of Lexington, Virginia, the home of Washington and Lee (W&L) University and the Virginia Military Institute (VMI).
And the “use” of this flagpole is, as some of you may have already guessed, to fly a Confederate flag.
According to SCV’s appellate brief, this contemporary conflict between the organization and the city has its roots in an earlier one from 1993.
That conflict arose when SCV claimed the city had prohibited it from carrying Confederate flags during the rededication of a 100-year-old statue of General Thomas “Stonewall” Jackson, and was resolved with the entering by the U.S. district court of a consent decree.
This decree barred the city of Lexington from abridging SCV’s right to:
wear, carry, display, or show, at any government-sponsored or government-controlled place or event which is to any extent given over to private expressive activity, the Confederate Flag or other banners, emblems, icons, or visual depictions designed to bring into public notice any logo of “stars and bars” that ever was used as a national or battle flag of the confederacy.
SCV didn’t actually invoke this decree until 2010, when it organized a parade through the city, the route of which SCV planned to line with Confederate flags.
SCV also formally requested the city’s permission to attach Confederate flags to the city-owned flag poles affixed to the city’s street lights.
Because several other organizations – including VMI and W&L University – had requested and received the city’s permission to do the same on earlier occasions, the city approved the request, but the lone dissenting voter made a unanimously adopted motion for the city to institute a “flag policy.”
This “flag policy” eventually took the form of a Lexington City Code amendment, which prohibited the flying of any flags on city-owned flagpoles except the U.S. flag, the Virginia flag, and the City flag of Lexington.
Naturally, SCV sued, claiming free speech violations (and a violation of the 1993 consent decree).
Specifically, on the free speech claim, SCV claimed that the city had previously established its flagpoles as a “designated public forum,” and then closed the forum in order to silence SCV’s message.
The city countered by asserting that the flagpoles were a nonpublic forum.
Without jumping in too deeply with this First Amendment “forum” business, I’ll just say that the categorization of a forum as “nonpublic” or “designated public” (or any of the other categorizations) endows varying levels of constitutional protections on speech within that forum.
In the district court’s June ruling, however, these distinctions didn’t seem to matter in this case.
The court found that the city’s flagpoles were likely nonpublic fora and thus entitled to very little protection, but, assuming that the flagpoles were “designated public fora,” SCV’s claim still fails.
Although the city may have indeed acted to limit access to the flagpoles in response to the SCV’s 2010 parade, since the ordinance didn’t have a discriminatory effect (it banned all viewpoints equally), the city’s intent, however discriminatory, is irrelevant.
And because no constitutional rights were violated, the court found that the city wasn’t in violation of the 1993 consent decree.
SCV has just filed an appeal.
However, considering the strength of the case law used in the district court’s opinion and the bizarre result that the appeal’s success would produce (a private organization forcing a city to fly the organization’s flag), success seems unlikely.
SCV can still take solace in the fact that its members live under a government that is bound to allow its citizens to fly a flag that historically represents a zealous separatist sentiment opposed to that government.