A Collaboration with the University of Pittsburgh

Federal judge dismisses lawsuit challenging Confederate flag ban

A federal judge in Virginia dismissed a lawsuit [opinion, PDF] on Thursday challenging the constitutionality of the city of Lexington's 2011 ordinance banning the Confederate flag from being flown on city poles. The lawsuit, filed by the Sons of Confederate Veterans (SCV) [advocacy website], alleged that the ordinance violates the First Amendment of the US Constitution [text]. Judge Samuel Wilson of the US District Court for the Western District of Virginia [official website] dismissed the lawsuit on the grounds that the ordinance is reasonable and content-neutral:

The ordinance is content neutral because it makes no distinction as to viewpoint or subject matter and advances no particular position. Rather, on its face, the ordinance prohibits the expression of all private viewpoints and instead reserves government flag poles for government flags. No private entity may attach its flag to the City's flag poles. There is simply no question that the ordinance does not regulate expression on the basis of content. Absent some discriminatory effect, allegations regarding the City’s motivation in enacting the ordinance do not alter the court's analysis.

The question of reasonableness is no less certain. ... [A]llowing a city-owned flag pole to serve as a public forum could suggest the government has placed its imprimatur on private expression. The Constitution does not compel a municipality to provide its citizens a bully pulpit, but rather requires it to refrain from using its own position of authority to infringe free speech.

It is unclear whether the SCV plans to appeal the ruling.

The Confederate flag has been a subject of controversy in recent years. In August 2008 the US Court of Appeals for the Sixth Circuit [official website] upheld [JURIST report] a Tennessee high school's ban on wearing the Confederate flag in a lawsuit brought by students who said the ban violated their freedom of speech, equal protection and due process rights under the US Constitution. In 2003 the US Court of Appeals for the Fourth Circuit [official website] upheld [JURIST report] the dismissal of a suit filed by a man who was fired for displaying Confederate flag stickers at work [NYT report].

About Paper Chase

Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

© Copyright JURIST Legal News and Research Services, Inc., 2013.