Sons of Confederate Veterans v. City of Lexington
894 F. Supp. 2d 768
W.D. Va.2012Background
- SCV sought to attach Confederate flags to city flag poles; City previously allowed private flags on the poles but then enacted a restricted policy limiting flags to US, Virginia, and Lexington; the ordinance effectively barred private entities from flying flags on the poles; SCV filed a 42 U.S.C. § 1983 suit seeking damages, equitable relief, and contempt for First Amendment claims and alleged decree violations; City moved to dismiss under Rule 12(b)(6) arguing the poles are nonpublic/forum or designated public forum and that the policy is reasonable, content-neutral, and closed to private speech; the court concluded the ordinance constitutionally closed a designated public forum and granted the City’s motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the flag poles are a nonpublic forum or a designated public forum | SCV alleges a created public forum by allowing private flags | City asserts nonpublic forum or a designated public forum that may be closed | Forum was constitutionally closed; City’s policy reasonable and content-neutral |
| Whether the § 420-205 ordinance is content-neutral and reasonable | SCV argues restriction targets private expression; not neutral | Policy is content-neutral and serves governmental purposes | Ordinance is content-neutral and reasonably restricts access in a nonpublic/ designated public forum |
| Whether the 1993 consent decree was violated | SCV asserts decree protected Confederate flags | Court found no First Amendment violation and decree not violated | No violation of the 1993 consent decree |
| Whether motive affects the validity of a facially neutral rule in a nonpublic forum | SCV contend motive shows viewpoint-based action | Motivation irrelevant when regulation is content-neutral | Motive not relevant to the constitutionality of a content-neutral closing in a nonpublic forum |
Key Cases Cited
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (traditional public forums and limited protections in nonpublic forums)
- Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998) (limits of public forum status; government may restrict in nontraditional contexts)
- United States v. Am. Library Ass'n, Inc., 539 U.S. 194 (2003) (limitations on accessing government-owned information channels; forum concepts)
- Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985) (government may close a designated public forum; reasonableness suffices)
- Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings College of the Law v. Martinez, 130 S. Ct. 2971 (2010) (distinction between designated/public forums and viewpoints)
- Make the Road by Walking, Inc. v. Turner, 378 F.3d 133 (2d Cir. 2004) (government may close a designated public forum)
- Shopco Distribution Co. v. Commanding Gen. of Marine Corps Base, Camp Lejeune, 885 F.2d 167 (4th Cir. 1989) (forum status changes do not require indefinite openness)