Federal Judge Upholds City of Lexington's Confederate Flag Ban

Note the title, as the below post elaborates on, is not entirely accurate. The title should say "Federal Judge Upholds City of Lexington's City Ordinance Banning Flags." Because the SCV is the main group taking the city to court and claiming free speech violations, the Confederate flag is thrust to the forefront.

Excerpt from the Roanoke Times:

A legal battle to fly the Confederate flag from the street light poles of Lexington died today at the hand of a federal judge.

In a written opinion, U.S. District Court Judge Samuel Wilson dismissed a lawsuit against the city filed by the Sons of Confederate Veterans.

The lawsuit challenged an ordinance, passed last year amid public furor, that limited the types of flags that can be flown from city-owned light poles.

Lexington City Council's decision to fly only the city, state and national flags was "eminently reasonable," Wilson wrote in a 10-page opinion released late today.

The Sons of Confederate Veterans had claimed that the city abused their free speech rights — banning the battle flag because of its controversial nature.

But in granting the city’s motion to dismiss the lawsuit, Wilson wrote that the city’s alleged motivations do not override the fact that the ordinance is content-neutral on its face.

By allowing only flags that represent government to be displayed on its light poles, the city essentially banned all private displays, including not just the Sons of Confederate Veterans but also two universities and several fraternities that have previously been allowed access to the poles.

For that reason, the city argued, the ordinance did not shun a particular cause and thus was not subject to First Amendment attack.

Wilson agreed, writing that to allow "a city-owned flag pole to serve as a public forum could suggest that government has placed its imprimatur on private expression."

 Judge Samuel Wilson's entire opinion can be read here. In short, Judge Wilson acknowledges that the SCV is right that the city maintained an open public forum on the light poles, and that the city closed the public forum with city ordinance 420-205. The judge acknowledged that the new city ordinance is content neutral and does not target the SCV. Therefore, this is not a freedom of speech issue. The judge elaborates on the targeting issue in one of the footnotes:

The Rule 12(b)(6) standard, as interpreted by Twombly and Iqbal, require that the factual allegations in the complaint nudge the claims across the line from conceivable to plausible. The facts in SCV’s complaint show that the City has allowed several groups (including SCV) to fly private flags from city-owned flag poles. That SCV was the last group in a line of several to get the City’s permission to fly its flags, that a councilman who voted against SCV’s application moved City Council to establish a flag policy, or that private citizens spoke out against City approbation of the Confederate flag, does not render plausible the theory that the City sought to silence SCV’s message by enacting § 420-205.

  That last sentence is important because as Kevin Levin pointed out on his blog Civil War Memory, the SCV will still be able to fly the CBF and spread the "Southern Heritage" message. They just can't do it on city poles.