Heritage group vows to appeal decision on Lexington’s flag ordinance
The Sons of Confederate Veterans said the ruling allows the silencing of unpopular groups.
By Laurence Hammack
Turned back in its skirmish to fly the Confederate colors from streetlight poles in Lexington, a Civil War group is refusing to wave a white flag.
Sons of Confederate Veterans said Friday it will likely appeal a federal judge’s decision upholding a city ordinance that effectively bans the Southern flag from public light poles.
"The city’s solution was to discriminate against everyone," the organization said of a policy that prohibits all private groups from using the city-controlled flag standards.
In a city steeped with Confederate history — Gens. Robert E. Lee and Thomas "Stonewall" Jackson are buried here — an appeal could prolong lingering tensions between defenders of that heritage and those who see the Confederate flag as a symbol of hatred and racism.
The conflict came to a head last September, when the Lexington City Council adopted an ordinance that allows only the city, state and national flags to fly from its light poles on designated holidays.
To some, the ordinance represented an even-handed approach to all private entities. After all, it rescinded a previous policy of allowing on occasion not just the Confederate flag, but those of Washington and Lee University, Virginia Military Institute and several school-related fraternities.
But to the Sons of Confederate Veterans, the vote was an affront to their cause.
"The process was so biased and egregiously discriminatory that the Sons decided it could not go unchallenged," the group’s Lexington-based Stonewall Brigade Camp said in a written statement released Friday.
In a lawsuit filed in U.S. District Court in Roanoke, the Sons of Confederate Veterans alleged the city shirked the First Amendment by taking a politically correct vote against its controversial flag.
Judge Samuel Wilson rejected that argument in a written opinion released late Thursday, which happened to be Flag Day.
"The ordinance is perfectly reasonable," Wilson wrote in a 10-page opinion that found it to be viewpoint neutral and therefore an offense to no one’s constitutional rights.
No court has forced a municipality to allow private-party access to government flag poles, Wilson wrote, saying he could find no reason to do so in this case.
"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," the opinion stated.
A key part of the case rested on what kind of forum the flag poles represented.
The U.S. Supreme Court has recognized three categories of forums: a traditional public forum, a nonpublic forum, and a designated public forum.
A traditional public forum includes streets, sidewalks and parks, where First Amendment rights are generally the strongest. (Consider the failed attempt earlier this year to ban anti-war protesters from the sidewalk in front of the Roanoke City Market Building.)
A nonpublic forum is government property not used for public communication. The city of Lexington maintained its flag standards fell into this category.
A designated public forum is a hybrid of the first two, in which government has allowed some expressive conduct in an otherwise closed area. In an ongoing dispute over the posting of the Ten Commandments in a Giles County school, the school board maintains that a multidocument display including both the commandments and historical screeds is a designated public forum.
In deciding the Confederate flag case, Wilson determined that the city created a designated public forum some years ago when it allowed private groups to fly their colors from its flag poles on a case-by-case basis.
When such a forum is later restricted — as Lexington decided to do last year — the motives of the governmental decision-makers are subject to scrutiny.
However, Sons of Confederate Veterans were unable to convince Wilson they were discriminated against because the city ordinance is consistent in prohibiting all private flags.
"The court finds that the city’s alleged motivation in closing the forum does not override the facially content-neutral character of the city’s new ordinance," the judge wrote.
In its written statement, Sons of Confederate Veterans maintained that Wilson’s ruling would allow governments to deny everyone access to public places in its effort to silence the groups with whom it disagrees.
"That logic would legitimize many of the wrongs committed by state and local governments during the Civil Rights era," the statement read.
With a possible appeal looming, Lexington officials were reluctant this week to comment in detail on their victory.
"We welcome the decision, which we believe is sound," said Paul Beers, a Roanoke attorney who represented the city.
"The city worked long and hard to develop the ordinance, and believes the ordinance has been vindicated."
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