Sons of Confederate Veterans, Virginia Division v. City of Lexington
722 F.3d 224
4th Cir.2013Background
- SCV sued City of Lexington challenging 2011 Ordinance 420-205(C) restricting private access to City flag standards to three flags.
- Ordinance enacted after SCV displayed Confederate flag in January 2011 parade; prior practice allowed private flag displays.
- Consent Decree from 1993 barred City from denying Confederate flag in government-controlled/private events, governing preexisting SCV rights.
- District court dismissed under Rule 12(b)(6), treated flag standards as a designated public forum, found the Ordinance facially neutral and reasonable, not breaching the Decree.
- SCV appealed; Fourth Circuit reviews de novo, holds designated public forum existed and could be closed, motive not controlling, and ordinance did not violate the Consent Decree; contempt claim rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the flag standards were a designated public forum | SCV: forum exists due to prior private access | City: forum exists but can be closed; not obligated to sustain open access | Yes; designated public forum existed and was validly closed |
| Whether the City’s motive in closing the forum invalidates the Ordinance | SCV: discriminatory motive makes closure unconstitutional | City: motive immaterial; neutral facially | Motive not controlling; closure permitted in a designated public forum |
| Whether the Ordinance complies with the 1993 Consent Decree | SCV: restricts Confederate flag in violation of Decree | Decree governs prior private expression; after closure, Decree not triggered | Ordinance does not violate the Consent Decree; Decree not triggered by absence of private flag displays |
Key Cases Cited
- Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (U.S. 1995) (determine forum type and First Amendment scrutiny depend on property)
- Int'l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (U.S. 1992) (forum-based approach to government property speech)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (U.S. 1983) (public forums require strict scrutiny, depending on forum type)
- Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (U.S. 1985) (designated public forums can be opened or closed by government)
- U.S. v. Greenburgh Civic Ass’ns, 453 U.S. 114 (U.S. 1981) (nonpublic forums require reasonableness, not viewpoint-based suppression)