14 F.4th 1242
11th Cir.2021Background
- The City of Alpharetta organized and was the primary financial sponsor of the annual Old Soldiers Day Parade (purpose: honor American war veterans). The City covered nearly all parade costs.
- Participation required submitting an application to the City that described the entrant’s intended message and agreed to abide by event rules; final approval was exercised by the Mayor and City Council.
- Richard Leake (Sons of Confederate Veterans) applied to march with a float and Confederate battle flag; the City responded that the Confederate battle flag was not allowed because it is a divisive symbol that would detract from the parade’s goal, but offered participation without the flag.
- Leake and Michael Dean sued city officials under 42 U.S.C. § 1983 seeking injunctive relief and damages for alleged First and Fourteenth Amendment violations; the parade proceeded without the Sons’ participation.
- The district court granted summary judgment for the City, concluding the parade constituted government speech; the Eleventh Circuit affirmed, holding the City could exclude the Confederate battle flag.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the parade was private speech protected by the First Amendment | Leake/Dean: Parade is a forum for private speech; City cannot exclude flag based on message | City: Parade is government speech; it may select content and exclude the flag | Parade is government speech; City may exclude the Confederate battle flag |
| Whether government-speech doctrine fails because allowing participants would force the City to express contradictory viewpoints | Sons: If parade is government speech, City would endorse conflicting views (e.g., Union vs. Confederacy) | City: Organizer may select participants to maintain a consistent government message; exclusion preserves message consistency | Matal-based inconsistency argument rejected; facts show City controlled and edited messages, so no absurd result |
| Mootness of injunctive claim after City's resolution to stop sponsoring future parades | Sons: Injunctive relief still remedy for past and future harm | City: Formal resolution ended sponsorship, so injunctive relief moot; alternatively, merits favor government speech | Court affirmed on merits (government-speech); resolution did not change analysis or outcome |
Key Cases Cited
- Walker v. Texas Div., Sons of Confederate Veterans, 576 U.S. 200 (2015) (government may control content of its own messages; applied to state-organized expressive programs)
- Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995) (parade organizers have First Amendment right to select expressive participants)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (government speech doctrine protects monuments and other government-controlled messages)
- Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) (government program that controls content of speech constitutes government speech)
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (government can select participants in an event as an inherently expressive choice)
- Gitlow v. New York, 268 U.S. 652 (1925) (First Amendment rights are protected against state action via Fourteenth Amendment)
- Mech v. School Bd., 806 F.3d 1070 (11th Cir. 2015) (framework for distinguishing government from private speech)
- Cambridge Christian Sch., Inc. v. Fla. High Sch. Athletic Ass’n, 942 F.3d 1215 (11th Cir. 2019) (application of history/endorsement/control factors in government-speech analysis)
- Matal v. Tam, 137 S. Ct. 1744 (2017) (discussed limitations on government-speech characterization where government does not control or edit content)