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Sons of Confederate Veterans, Virginia Division v. City of Lexington, No. 12-1832

Decided: July 5, 2013

The Fourth Circuit affirmed the district court’s determination that the City of Lexington’s decision to restrict the presentation of flags on city property was not unconstitutional nor was it a violation of a prior consent decree between the City of Lexington (the “City”) and the Sons of Confederate Veterans (the “SCV”) regarding the display of Confederate flags.

In 2010, SCV began planning a parade in honor of Robert E. Lee and Stonewall Jackson. Two months before the scheduled parade, the SCV sought permission from the Lexington City Council to display the Confederate flag on city light poles along the street during the parade. The City Council granted the request. After the parade took place in January 2011, the City Council received negative feedback about the display of the Confederate flag, leading the City Council to adopt an ordinance that only allowed the American Flag, the Virginia Flag, or the town flag to be flown on City light poles. After adopting the ordinance, the SCV sued the City for first amendment violations and for violations of a consent decree which the City and SCV entered into in 1993 whereby the City agreed not to abridge the rights of the SCV or its members to “wear, carry, display or show…the Confederate flag or other banners, emblems, icons or visual depictions to bring into public notice any logo of ‘stars and bars’ that ever was used as a national or battle flag of the Confederacy.” The district court determined that the light poles as “designated public forums” and dismissed the SCV’s claims. SCV appealed.

On appeal, the SCV first argued that the district court erred in determining that, the City’s motivation for closing the designated public forum was immaterial. The court disagreed, finding that, because the ordinance was facially neutral, the City’s motivation was not relevant. The court began by identifying the nature of the form at issue. The court explained that public forums, like sidewalks, receive the greatest first amendment protection while nonpublic forums, such as polling places, are not entitled to as much protection. The Fourth Circuit determined that the light poles at issue in this case fell into a third category called “designated public forums” that is a “nonpublic government site that has been made public and ‘generally accessible to all speakers.’” As a designated public forum, the City was free to close the forum at any time, regardless of motivation. Furthermore, the city did not prohibit individuals from displaying Confederate flags on private property or from carrying flags in public. The court also dismissed the SCV’s argument that the ordinance violated the 1993 consent decree. The court held that because there was no constitutional violation in passing the ordinance, there could similarly be no violation of the consent decree. The decree merely stipulated that the City would not deny the SCV the right to display the Confederate flag at any “place or event which is to any extent given over to private expressive activity.” By constitutionally closing the designated public forum, the City abolished “private expressive activity” from its flag standards. Furthermore, the court rejected the argument that the City could not close its flag standard since they were previously given over to private expressive activity.

Full Opinion

– Wesley B. Lambert