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Three-judge panel agrees with U.S. District Court ruling that Lexington was within its rights to ban all non-government flag displays from city light poles.
The Roanoke Times | File 2011
Supporters of a Sons of Confederate Veterans anti-ordinance rally held at Hopkins Green in Lexington wave flags to protest a Lexington City ordinance that would effectively ban flags, such as the Confederate flag, from flying from public lamp posts.
Friday, July 5, 2013
Lexington’s ban on flying the Confederate flag — and other non-governmental colors — from city-owned light poles does not violate a heritage group’s right of free speech, a federal appeals court ruled Friday in upholding a lower court’s 2012 ruling.
The Sons of Confederate Veterans, Virginia Division, sued the city after its passage of the ordinance in 2011. U.S. District Judge Samuel Wilson dismissed the lawsuit in June 2012, calling the city’s ban “eminently reasonable” because it banned all non-government flag displays, not just the Sons of Confederate Veterans.
The SCV appealed the ruling to a three-judge panel of the 4th U.S. Circuit Court of Appeals, which found that while the light poles were a public forum, it’s within the city’s rights to close that forum, and that’s what the Lexington City Council did with its ordinance.
“Although the First Amendment guarantees free speech in a public forum, it does not guarantee access to property simply because it is owned or controlled by the government,” the court wrote in its opinion, adding later: “It appears that the City experimented with private speakers displaying flags on the City’s standards, and that effort turned out to be troublesome. It was entitled, under the controlling principles, to alter that policy.”
“Obviously we’re pleased,” said Jeremy Carroll, attorney for the city. “Two federal courts have upheld the city’s actions.”
The SCV can appeal the case to the U.S. Supreme Court, but Thomas Strelka, the attorney representing the group, said he hadn’t talked with his client yet.
“Personally, I’d like to see it go forward,” he said.
Brandon Dorsey, commander of Camp 1296 of the Lexington-based Stonewall Brigade of the Sons of Confederate Veterans, said his group will take it’s cue from their attorneys.
“If they still feel the case is strong, and they’re still willing to fight on, I’m sure we’ll be willing to do our part to make that happen,” he said.
Lexington City Council unanimously passed the ordinance after years of allowing not only the SCV to hang flags from the poles, but also the Virginia Military Institute, Washington and Lee University and other groups. The ordinance prohibits flying all but the American, Virginia and Lexington flags from the poles.
The SCV had claimed that Lexington City Council passed the ordinance to censor the particular views of the group, as represented by the flag, and that makes the ordinance unconstitutional.
The court, however, said that argument is without supporting precedent, and cited several Supreme Court cases that found the opposite. “We are governed by laws, not by the intentions of legislators,” reads one.
“The ordinance has the effect of closing a designated public forum – the perpetual availability of which was never guaranteed – to all private speakers,” the court wrote.
“All private groups and individuals remain free to express their flag-bound messages in other ways.”
Dorsey said by that logic, it would be acceptable to close a public school or swimming pool to all people to keep black children out. “We wouldn’t let that stand today against a minority class,” he said.
The SCV also claimed the ordinance violated a “consent decree” that settled a 1993 lawsuit the group brought against the city. That decree barred the city from denying the SCV the right to “wear, carry or display the Confederate flag at any government sponsored or government-controlled place or event which is to any extent given over to private expressive activity.”
The court ruled the ordinance didn’t violate the decree because it eliminated the light poles as a government-controlled place for private expression.
The SCV has two weeks to petition the 4th Circuit for a rehearing by the full court, and 90 days to file a petition to be heard by the Supreme Court.
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