Dead Confederates, A Civil War Era Blog

Why the SCV will Lose in Lexington, and Win in Texas

Posted in Memory by Andy Hall on March 12, 2012

Several weeks ago the Virginia Division of the Sons of Confederate Veterans filed a lawsuit in federal court in Roanoke against elected officials in the City of Lexington, in response to that community’s adoption of a new ordinance barring anything other than official U.S., Virginia and city flags being flown at public facilities downtown and on the Veterans Memorial Bridge.

Concurrently, the Texas Division of the SCV is pursuing legal action against the state here, challenging the state’s rejection of a special license plate promoting the SCV. Both lawsuits lean heavily on the Equal Protection Clause of the 14th Amendment. While both these cases are only beginning their journey through the courts, and there are plenty of arguments yet to be made on both sides, I believe the SCV will lose in Lexington, but prevail in Texas. And the Equal Protection Clause lies at the core of both outcomes.

Lexington first. The lawsuit names the City of Lexington and eight individuals, in their “official capacity,” as defendants. These include Mayor Mimi Elrod, City Manager Jon Ellestad, and all six members of the current City Council. Mary P. Harvey-Halseth, a council member who voted against the ordinance, and David Cox, another member who was absent from the meeting, are also included as defendants. You can read the SCV’s federal complaint here (which includes the text of the new ordinance on p. 6), and the minutes of the September 1, 2011 Lexington City Council meeting here.

Public display of Confederate flags — as Brooks Simpson points out, there’s not just one — has long been a contentious issue in Lexington. Twenty years ago, the city tried to ban displays of the Confederate flag on public property, and lost their case in 1993 (Sons of Confederate Veterans, Virginia Division v. City of Lexington, Virginia, et al.,). At that time, the court ruled that the city could not prevent others

to wear, carry, display or show, at any government-sponsored or government-controlled place or event which is to any extent given over to private expressive activity, the Confederate Flag or other banners, emblems, icons, or visual depictions. . . .

The emphasis here is mine, and it’s central to the court’s decision. The ruling in 1993 is based not only on the First Amendment right of Free Speech, but also on the Equal Protection clause of the 14th Amendment, that requires governmental entities to enact laws and policies in an equitable way, without making exceptions, good or bad, for any particular group. That’s clearly what the court had in mind when ruled that the Confederate flag could be displayed in any forum that “is to any extent given over to private expressive activity.” If you do it for one, you have to do it for another.

The Equal Protection Clause is important here because the First Amendment, on its own, is insufficient when it comes to government-sponsored or government-hosted expression. The First Amendment, by itself, is not enough. Freedom of Speech has never been absolute; it does not extend to libelous speech, or direct incitement to violence. And there’s nothing about the First Amendment that obligates Lexington to host on its property any private organization’s emblem or banner — not mine, not yours, and not the Virginia SCV’s. First Amendment concerns only become relevant here if the City of Lexington extends that privilege to some, but not others.

The City of Lexington understood this when crafting the ordinance to exclude all flags except those of select government entities — federal, state and local. The ordinance bars Confederate flags, but only because it bars all others, including those of the two universities in town, the Virginia Military Institute and Washington & Lee. There’s no question that, embarrassed by the conjunction on the calendar of Lee-Jefferson Day and the MLK federal holiday, they were seeking to find a legal way to resolve future conflicts, and so adopted an ordinance that would bar all other flags. That’s a calculation the city council in Lexington chose to make, and they’re on solid legal ground. Even one of the leaders of the “Virginia Flaggers,” a group that protests perceived slights to Confederate symbols and who’s an outspoken critic of the Lexington ordinance, acknowledged at the time of its passage that the “ordinance is air tight. I agree.

The Texas case, by contrast, presents an entirely different set of facts – namely, that the state already offers dozens of different plate designs for private organizations and causes. Like dolphins? There’s a plate for that. Proud of your alma mater? There’s a plate for that. Are you a Master Gardener? A Dallas Mavericks fan? Do you love red grapefruit? There are plates for all those things. Why, we have plates for schools that aren’t even in Texas. And that’s why, in my view, Texas will be unable to defend its decision last November to deny the SCV plates. If you do it for one, you have to do it for another. And when it comes to specialty license plates, Texas already does it for damn nearly everybody.

As it happens, my own county’s Tax Assessor-Collector, Cheryl Johnson, sits on the TxDot board that considers plates, and voted in favor of the plate the first time it came up for a vote. She later explained her vote by saying that the SCV “have sued before to get the license plate [in other states] and have won. I voted in favor because I didn’t think the state would win any lawsuit.” She’s right about that last part, in my view. (That first vote, in which Johnson voted in favor of the proposal, was a tie; she was not present for the November meeting where it was voted down, 8-0.)

The Lexington and Texas cases bear some similarities; both challenge governmental entities’ decisions to bar the Confederate Battle Flag from display on a public venue. Both lawsuits also base their core arguments on the Equal Protection Clause of the 14th Amendment. But the specific facts of the two cases are miles apart. So long as Lexington continues to bar all outside banners, their ordinance almost certainly falls in line with the Equal Protection Clause, and so passes constitutional muster. Texas, on the other hand, has a years-long history of granting specialty plates to just about any organization that seeks one.

They haven’t got a legal leg to stand on.

Image: Virginia Flaggers rally in January 2012 at Hopkins Green in Lexington to call for the defeat of Mayor Mimi Elrod. Image via

8 Responses

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  1. Rob Baker said, on March 12, 2012 at 10:18 pm

    Excellent work Andy; as always.

  2. focusoninfinity said, on March 13, 2012 at 12:27 am

    Any: I think you SHOULD be right in both Virginia and Texas, and likely will be right in both places.

    • Andy Hall said, on March 13, 2012 at 2:34 pm

      The legal arguments made by the plaintiffs are the same, as far as I can tell. The basic landscapes of the decisions they’re challenging, though, are almost the opposite of each other. In its ordinance Lexington said, in effect, “we’re not doing any group’s flags anymore.” Texas, by contrast, said, “we’re not doing that flag.” Big difference.

  3. Margaret D. Blough said, on March 16, 2012 at 7:05 pm

    Andy-Well said. IMO, states bought themselves a mess of trouble when they decided to sell rights to sponsor license plates in order to raise money. Aside from the fact that police hate them because it makes it very difficult to identify the state issuing the license plate, once a state does this, if it tries to say no because it doesn’t like a particular group’s views, then it must meet the toughest First Amendment test, strict scrutiny for content-based restrictions. It’s not impossible to meet but it’s about as close to that as you can get.

    The Lexington case is a related but distinct variant-whether a governmental entity has created a public forum (which includes limited public forums). A government doesn’t need to do this but, if it does, then there are rules. Risk of violence is not an argument if it involves violence against the speaker because of his or her views. The speaker must be the source of the violence to count as a restriction.

    The surest governmental restrictions to withstand attack are time, place, and manner restrictions provided they are reasonable both facially and in application.

    The ironic thing is that much of the case law on which the Flaggers rely was developed in cases fighting restrictions that Southern governmental entities tried to impose in order to prevent civil rights demonstrations in the 50s and 60s.

    • Josephine Lindsay Bass said, on June 3, 2012 at 12:18 pm

      What is really ironic is that we wouldn’t even have these cases at all except for the civil rights demonstrations in the 50s and 60s. In these cases the shoe is on the other foot, and Confederate Southern Americans should win both of them!

  4. Chuck Smith said, on March 23, 2012 at 9:57 am

    And, the SCV has commemorative plates in Virginia.

    • Andy Hall said, on March 23, 2012 at 10:07 am

      Yes, I know. They’ve won court cases in several states, under the same legal argument that they will use (and win with) here in Texas.

      My beef with the Texas design is that it doesn’t do a damn thing to commemorate the war, or Texas soldiers or civilians of 1861-65. It doesn’t even mention them; the entire design consists of the logo and name of the Sons of Confederate Veterans — the latter, twice. It’s a plate that promotes the organization, and little else. It’s not commemoration, so much as state-endorsed advertising.

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