RICHARD LEAKE, MICHAEL DEAN v. JAMES T. DRINKARD, In his personal capacity and official capacity as Assistant City Administrator of City of Alpharetta, Georgia
No. 20-13868
United States Court of Appeals for the Eleventh Circuit
September 28, 2021
[PUBLISH]
In the United States Court of Appeals For the Eleventh Circuit
No. 20-13868
RICHARD LEAKE, MICHAEL DEAN, Plaintiffs-Appellants,
versus
JAMES T. DRINKARD, In his personal capacity and official capacity as Assistant City Administrator of City of Alpharetta, Georgia, Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Georgia
D.C. Docket No. 1:19-cv-03463-WMR
Before WILLIAM PRYOR, Chief Judge, LAGOA, Circuit Judge, and SCHLESINGER,* District Judge.
In Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015), the Supreme Court clarified that, “[w]hen [the] government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” Id. at 207. Some of the Sons of Confederate Veterans did not get the message. A member, Richard Leake, applied to participate in the Old Soldiers Day Parade, a pro-American veterans parade funded and organized by the City of Alpharetta, Georgia. The City informed Leake that the Sons of Confederate Veterans would be allowed to participate, but only if it agreed not to fly the Confederate battle flag. Not content with this offer, Leake and Michael Dean, another Son, filed a civil-rights action against City officials,
* Honorable Harvey Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation.
Parade constituted government speech and entered summary judgment against the Sons. Because governments are not obliged under the
I. BACKGROUND
The Old Soldiers Day Parade began after the Civil War in the City of Alpharetta to honor veterans of that war, but the Parade was discontinued after a few years. The City resumed the Parade in 1952 after a small group of residents wanted to recognize local war veterans. The City has sponsored the Parade every year since then.
The 67th Annual Old Soldiers Day Parade was held on August 3, 2019. On its website, the City promoted the Parade “as a way to celebrate and honor all war veterans, especially those from Alpharetta, who have defended the rights and freedoms enjoyed by everyone in the United States of America.” “The goal of this parade,” according to the City‘s advertisement, “is to celebrate American war veterans and recognize their service to our country.” The City‘s advertisement identified the “City of Alpharetta and American Legion Post 201” as “hosts [of] the Annual Old Soldiers Day Parade.” Although the Legion was involved, the City was the Parade‘s primary financial sponsor and was responsible for almost all its costs (about $28,400). By contrast, the Legion did not financially contribute any significant amount.
On the Monday after Independence Day in 2019, Richard Leake completed an application on behalf of the Roswell Mills Camp Sons of Confederate Veterans, of which he is a member. The application asked for a detailed description of the Sons of Confederate Veterans‘s float. Leake wrote that there would be a “[t]ruck pulling trailer with participants holding unit flags.” The application also asked applicants to “write a description of what you would like to say about your group or organization as you pass the Reviewing Stand.” Leake wrote that they would say that the Sons of Confederate Veterans is an “organization dedicated to preserving the memory of our ancestors who served in the War Between the States and ensuring that the Southern view of that conflict is preserved.” The application required that the Sons of Confederate
Veterans agree to “abide by all rules and regulations set forth by the event organizers[, the City of Alpharetta and the American Legion Post 201,] in the Old Soldiers Day Parade.” Leake signed the application.
The following day, James Drinkard, the Assistant City Administrator, sent a letter to Leake in response to his application. The letter was sent “following approval from Mayor Gilvin.” In the letter, Drinkard reiterated that the purpose of the Parade is to “unite our community” to “celebrat[e] American war veterans,” and that, in the light of that purpose, “there is cause to question the appropriateness of participation by an organization devoted exclusively to commemorating and honoring Confederate soldiers.” (Internal quotation marks omitted.)
Drinkard‘s letter stated “that the Confederate Battle Flag has become a divisive symbol that a large portion of our citizens see as symbolizing oppression and slavery.” In the City‘s view, that divisiveness would draw “the spotlight away from the goals of the . . . Parade and the service of our American war veterans.” (Emphasis added.) The letter continued, “the City of Alpharetta will maintain its decision, supported unanimously by Mayor Gilvin and the City Council, to not allow the Confederate Battle Flag to be flown in the Old Soldiers Day Parade.”
The City offered to allow the Sons of Confederate Veterans to participate in the Parade “absent the Confederate Battle Flag.” The Sons of Confederate Veterans would also have to agree not to do anything “that would detract from the event goal of uniting our
community for the purpose of celebrating American war veterans.” Drinkard informed Leake that “the City of Alpharetta [would] approve [his] application” if he were to agree to these conditions.
Three days before the Parade, Leake and Dean sued Drinkard and other City officials, including Mayor Gilvin, for violating their right to free speech under the
Later that year, the Mayor and City Council formally resolved “that the City of Alpharetta shall no longer sponsor or financially support future Old Soldiers Day Parades.” The City then moved for summary judgment, arguing that the Parade constituted government speech and that the claim for injunctive relief was now moot because of the City‘s formal resolution to discontinue its sponsorship of the Parade in the future. The district court later granted summary judgment for the City on the ground that the Parade constituted government speech.
II. STANDARD OF REVIEW
“We review a summary judgment de novo.” Mech v. Sch. Bd., 806 F.3d 1070, 1074 (11th Cir. 2015) (internal quotations marks omitted). Summary judgment is appropriate in this case if, after viewing the record in the light most favorable to the Sons, id., “there is no genuine dispute as to any material fact” such that the City “is entitled to judgment as a matter of law,”
III. DISCUSSION
For the Sons to prevail in this civil-rights action,
The
But whether that personal right has been abridged depends crucially on whose speech is at issue.
The
What makes speech government speech? Although we lack a “precise test,” id., there are three factors we use to distinguish government speech from private speech: history, endorsement, and control, Cambridge, 942 F.3d at 1230. “The first factor-history-directs us to ask whether the type of speech under scrutiny has traditionally ‘communicated messages’ on behalf of the government.” Id. at 1232 (quoting Walker, 576 U.S. at 211). The second factor-endorsement-asks whether “observers reasonably believe the government has endorsed the message.” Mech, 806 F.3d at 1076. “Finally, the control factor asks whether the relevant government unit ‘maintains direct control over the messages conveyed’ through the speech in question.” Cambridge, 942 F.3d at 1234 (quoting Walker, 576 U.S. at 213).
These factors are neither individually nor jointly necessary for speech to constitute government speech. See Mech, 806 F.3d at 1075-76. But a finding that all evidence government speech will almost always result in a finding that the speech is that of the government. See, e.g., Walker, 576 U.S. at 210-14; Dean v. Warren, No. 19-14674, slip op. at 33-38 (11th Cir. 2021). And all three factors support the City‘s position that the Parade constituted its speech.
A. History
The history of military parades in general, and this Parade in particular, weighs in favor of finding that the Parade was government speech. Just as “[g]overnments have long used monuments to speak to the public” and “commemorate military victories and sacrifices,” Summum, 555 U.S. at 470, so too governments of all
kinds have from time immemorial used parades to communicate the same kinds of messages. Examples are legion. Take one: The Roman triumphs were “famous parades through the city of Rome that celebrated Rome‘s greatest victories against its enemies.” MARY BEARD, THE ROMAN TRIUMPH 1 (2009). And they also involved celebrating war veterans. Id. (“To be awarded a triumph was the most outstanding honor a Roman general could hope for.“).
Since then, governments, up to and including the United States, have used triumph parades to celebrate their militaries. For example, in 1899 “the victories of Admiral George Dewey in the Spanish-American War were celebrated with a triumphal parade in New York” and “a special triumphal arch was built . . . at Madison Square.” Id. at 2. So the particular medium of communication at issue here-a parade-is one that, since “ancient times,” Summum, 555 U.S. at 470, “has traditionally ‘communicated messages’ on behalf of the government,” Cambridge, 942 F.3d at 1232 (quoting Walker, 576 U.S. at 211). And the “kind of speech” conveyed through that medium-celebration of the military-is one that was “often closely identified in the
The history of this Parade especially fits within the general history of government-sponsored parades. The City has sponsored the Parade every year since 1952. The Parade‘s central purpose was to honor and celebrate American war veterans. The 2019 Parade‘s purpose and message were the same. And the City remained its
only significant financial sponsor. So history establishes both that the medium used here and the message conveyed through it are ones traditionally associated with governments. It follows that this factor favors the City. See Mech, 806 F.3d at 1075-76 (“A medium that has long communicated government messages is more likely to be government speech . . . .“).
B. Endorsement
The City expressly “endorsed the [Parade‘s] message,” which “strongly suggests that the [Parade] [is] government speech.” Id. at 1076. The City publicly advertised and promoted the 2019 Parade on its website, where it identified itself and the Legion as co-hosts. The City publicly identified the “goal of th[e] parade” as the celebration of “American war veterans” and the recognition of “their service to our country.” The City publicly endorsed the sentiment that “all war veterans, especially those from Alpharetta” should be “celebrate[d] and honor[ed].” And the City publicly advertised that the Parade would open with a performance by the City Band. “[O]bservers [would have] reasonably believe[d] the government ha[d] endorsed the [Parade‘s] message” because the City expressly and publicly did so. Mech, 806 F.3d at 1076; see also Dean, No. 19-14674, slip op. at 35 (concluding that “there is no doubt that Kennesaw State University endorses the message conveyed by its cheerleading team” because of express statements on the athletics department‘s website evidencing that cheerleaders “are expected to convey a message of which the university approves“).
The Legion‘s involvement does not undermine this conclusion. To be sure, Drinkard asserted in an email that the Parade “is largely viewed as the Legion‘s event.” But he admitted in the same sentence that “the event is put on as a partnership between the American Legion and the City.” (Emphasis added.) That partnership was a matter of public knowledge. And a partnership “suggests that the [Legion] has a close relationship with the [City]-i.e., that the [Legion] is an ‘associate’ or is ‘engaged together in the same activity.‘” Mech, 806 F.3d at 1076 (quoting Partner, Oxford English Dictionary (online ed.)). So both the City and the Legion publicly came together to endorse the same message. Indeed, “partnership” is an understatement. Although the Legion was publicly identified as a co-host of the Parade, it did not financially contribute to it in any significant amount. The City, by contrast, covered almost all the Parade costs, including those associated with the event space, public safety personnel, barricades, and vendors to service the Parade.
The Sons contend that the Parade‘s being “sponsored with both private and public money” is sufficient to make it private speech and that “the City is using its position as a majority-sponsor of the parade to regulate private speech.” But neither the Legion‘s involvement nor the involvement of private organizations as participants in the Parade itself establish that the City did not endorse the messages communicated by the Parade. “The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message,” Walker,
576 U.S. at 217, especially if, as here, the government is organizing and funding the
C. Control
The final factor-control-strongly supports that the Parade was the City‘s speech. The evidence establishes that the City “maintains direct control over the messages conveyed” in the Parade. Id. at 213. Participation in the Parade depended on submission of an application to the City. The application expressly required applicants to describe the kinds of messages they intended to convey at the Parade. “[F]inal approval authority” over the application was exercised by the City based on the message the Mayor and City Council wanted the Parade to communicate. Johanns v. Livestock Mktg. Ass‘n, 544 U.S. 550, 561 (2005); see also Mech, 806 F.3d at 1078 (holding that the control factor “strongly suggests that the banners are government speech” because school principals
were obliged to approve every banner before they were placed on school fences). The Legion, by contrast, did not determine who participated in the Parade.
All these facts establish that the control factor weighs in the City‘s favor. The City “effectively controlled the messages conveyed” by requiring applicants to describe the messages they intended to communicate and then by “exercising final approval authority over their selection” based on those descriptions. Walker, 576 U.S. at 213 (alterations adopted) (internal quotation marks omitted). When the City exercised this control as the Parade‘s organizer by excluding organizations with whose speech the City disagreed, the City was speaking. See Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 64 (2006) (“[A] parade organizer‘s choice of parade contingents . . . is . . . inherently expressive.“).
To be sure, once an applicant is admitted, it may renege on its express promise on the application form to “abide by all rules and regulations set forth by the event organizers.” But the government need not “control every word or aspect of speech in order for the control factor to lean toward government speech.” Cambridge, 942 F.3d at 1235-36. If the reverse were true, any speech through private parties would involve yielding control. The government-speech doctrine does not require omnipotence. See id. (“[C]omplete control is not required.“). And, as we have repeatedly stressed, the City was free “to express its views” by receiving “assistance from private sources for the purpose of delivering a government-controlled message.” Summum, 555 U.S. at 468. The City
decided which private groups to admit or exclude based on the consistency of the groups’ characterizations of their intended speech on the City‘s application form with the messages the City wanted to communicate through the Parade. And the City required that participants agree in advance to abide by “all rules and regulations” that the City imposed. Either exclusion or advance preconditions
Matal v. Tam, 137 S. Ct. 1744 (2017), is not to the contrary. In Matal, the Supreme Court held that the content of registered trademarks is not government speech in part because the government would then be “babbling prodigiously and incoherently,” expressing at once “contradictory views.” Id. at 1758. The Sons rely heavily on this reasoning. They argue that, if the Parade were the City‘s speech and the Sons participated even without displaying the Confederate battle flag, the City would be expressing contradictory views by “simultaneously endors[ing] opposing sides of the same wars, such as the Union and the Confederacy.”
There is nothing to this argument. Matal‘s reasoning about contradictory speech followed other considerations in the light of which the Court concluded that “it is far-fetched to suggest that the content of a registered mark is government speech.” Id. The Court explained that the government “does not edit marks submitted for registration“; “an examiner may not reject a mark based on the viewpoint that it appears to express” (save the exception at issue in that case); “an examiner does not inquire whether any viewpoint
conveyed by a mark is consistent with Government policy“; if the mark meets viewpoint-neutral requirements, “registration is mandatory“; and the placement of the mark on the principal register is ordinarily not reviewed by any official higher than the examiner. Id. The opposite facts exist in this case: The City asked for a detailed description of the intended speech so that it could “edit” the speech. The City exercised the discretion to reject any organization based on whether the viewpoint it intended to express was consistent with the City‘s views. And the ultimate decision was made by the highest City authorities. This appeal is not Matal.
In any event, “[e]ven if we agreed that the protection of the government-speech doctrine must be forfeited whenever there is inconsistency in the message, we would nonetheless accord the protection here” because the City‘s message was consistent. Johanns, 544 U.S. at 561 n.5. The fallacy in the Sons’ argument is the implicit assumption that all views associated with all participants would be the City‘s speech if the Parade were the City‘s speech. But that assumption is false. “By accepting” a float, the City “does not necessarily endorse the specific meaning that any particular donor sees in” it. Summum, 555 U.S. at 476-77.
Consider an example on which the Sons rely: The City allowed the “Democrat Party of Fulton County [to] participate.” In the light of the Parade‘s central message-honoring veterans-observers could reasonably infer from their participation not that the City endorsed everything for which the Democrats stand, but that the City has brought together diverse “private parties” to
“propagat[e]” one common message with which all participating parties agreed. Walker, 576 U.S. at 217. And one could reasonably infer that there was nothing on the Democratic Party‘s float that the City thought was incompatible with the values it was seeking to promote through the Parade. See Hurley, 515 U.S. at 574 (“Rather like a composer, the [organizer] selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent‘s expression in the [organizer‘s] eyes comports with what merits celebration on that day.“).
Finally, “[a]bsurd results would follow if the
the City-organized Parade. Dean, No. 19-14674, slip op. at 37. By the Sons’ logic, anytime the government seeks to organize an event by bringing private parties together to communicate a message the government wants expressed, it must allow the participation of other parties that will express the opposite message. For example, if after ratification of the
The three-factor analysis establishes that, when governments organize and sponsor a parade to communicate a message, the parade is their speech from which they may include or exclude participants at will. “Since every participating unit affects the
message conveyed by the . . . organizers” of a parade, neither the government nor private parties may compel them “to alter the expressive content of their parade.” Hurley, 515 U.S. at 572-73. This principle applies no matter whether the organizer is the government or a private party. A government cannot compel a private parade organizer to admit groups of whose views the private organizer disapproves. Id. at 574-75 (holding that the State could not compel a private parade organizer to admit a gay, lesbian, and bisexual advocacy group because the “parade‘s organizers” had a right to choose not “to propound a particular point of view“). And we hold that a private organization cannot compel a government parade organizer to admit groups of whose views the government disapproves.
“To the [Sons of Confederate Veterans], [the Confederate battle flag] is said to evoke the memory of their ancestors and other soldiers who fought for the South in
Southern governments began prominently displaying the Confederate battle flag, not soon after their defeat by the United States in 1865, but in the 1950s and 1960s “in symbolic defiance of changing laws that threatened” state-compelled racial segregation. Moore v. Bryant, 205 F. Supp. 3d 834, 843 (S.D. Miss. 2016). “In early 1948, as President Truman pressed for Civil Rights legislation, some Southern Democrats called for an anti-Truman,
segregationist electoral bloc in the South.” Chris Springer, The Troubled Resurgence of the Confederate Flag, 43 HIST. TODAY, no. 6, June 1993, at 7, 8. Segregationist Democrats “appropriated the Confederate flag as their symbol” and “[f]or their political and racial revolt against federal civil-rights legislation, “they mustered behind them all the iconography of the Confederacy.” Id. “In 1956, Georgia redesigned its flag to include the Confederate battle emblem,” and both South Carolina and Alabama raised the flag at their state capitols in 1962 and 1963, respectively, at the height of their attempts to preserve the institution of racial segregation. Moore, 205 F. Supp. 3d at 843-44. As a result, “the Dixiecrat campaign greatly strengthened the links between the flag and white supremacism.” Springer, supra, at 8.
The City recognized the obvious fact that the flag “has become a divisive symbol that a large portion of our citizens see as symbolizing oppression and slavery.” Although Southern governments once flew the flag to promote those unjust causes, they cannot now be compelled to do so by private parties when they have made the decision to promote just causes instead. We hold that the Parade was the City‘s speech. It follows that the Sons of Confederate Veterans “cannot force [the City] to include a Confederate battle flag” in the veterans parades it funds and organizes. Walker, 576 U.S. at 219.
IV. CONCLUSION
We AFFIRM the judgment in favor of the City.