Dead Confederates, A Civil War Era Blog

Throwing Good Money After Bad

Posted in Legal Issues, Memory by Andy Hall on June 2, 2013

scA few weeks ago, the Fourth U.S. Circuit Court of Appeals in Richmond declined to reinstate the lawsuit of Candice Hardwick, the former Latta, South Carolina high school student who spent years, starting in middle school, trying to get herself suspended for wearing Confederate flag t-shirts with captions like “Daddy’s Little Redneck” and “Southern Chick.” Another shirt in her wardrobe apparently featured that fraudulent “Louisiana Native Guards” image. There’s a good story providing the background of this seven-year-old case here.

As a practical matter, the Fourth Circuit’s ruling probably should have been the end of this case, but now the odious Kirk Lyons is soliciting $5,000 in donations to “help Candice get to the Supreme Court.” Lyons is certainly welcome to ask for money, and folks are welcome to contribute if they desire, but I do think Lyons should have been a bit more forthcoming in explaining the history of the case, and the likelihood of it getting a hearing before the Supremes.

In the first place, getting “cert,” as the saying goes, is a real longshot in almost any case. In any given term, the court is asked to hear thousands upon thousands of cases, but  actually accepts only a few dozen — usually less than 1% of the total. There are exceptions, of course, when there are very fundamental and profound legislative questions at hand — the Affordable Healthcare Act and the Defense of Marriage Act are two of recent memory — but generally, the Supremes don’t take cases unless there are conflicting rulings at the lower court level, or the justices — specifically, any four of the nine — deem that the issues raised by the case are worth revisiting. I don’t think that latter circumstance is likely, particularly given that they will likely see this case as not about the Confederate flag per se, but about the broader authority of schools to regulate students’ speech or expression. The most important recent ruling on that subject, Morse v. Frederick (2007), is actually more recent than Hardwick’s original lawsuit, and at 6-3, wasn’t even a close decision. The six justices who voted against the student in that case (Roberts, Alito, Scalia, Kennedy, Breyer and Thomas) all remain on the bench.

Precedent aside, there’s also little other reason to expect Hardwick’s case to get a hearing at the Supreme Court. Best as I can tell, Hardwick’s has only been tried on its merits once, and she lost; everything else in the last seven years has been a round-robin of dismissals and appeals of said dismissals at the appellate level. There’s no particular reason to believe that four justices of the U.S. Supreme Court will see value in committing its resources to hearing a case that lower federal courts have deemed unworthy of their time.

Lyons really ought to be more forthright with prospective donors about the prospects in this case. The fiery rhetoric of his solicitation is calculated to inspire his supporters to open their wallets — “rotten & dishonest school tyranny,” “chicanery, hypocrisy and intellectual dishonesty of the 4th Circuit US Court of Appeals,” and so on — but it’s crafted to appeal to raw emotion, rather than than to cold reason. As is so often the case with “heritage” lawsuits, it’s woefully short on specific details that reflect the actual prospects of the case, or the legal framework within which arguments will be made. The odds against Hardwick’s case even being heard are extremely long, but Lyons’ appeal for cash makes it sound like it’s just a matter of raising the scratch. It’s not.

As I say, people are welcome to contribute if they want, but they should do so only with a clear vision of the return they’re likely to get on their investment.




12 Responses

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  1. Bob Nelson said, on June 2, 2013 at 2:57 pm

    It seems a waste of time and money given the previous ruling. I have a number of Southern friends on several Yahoo groups whose ancestors fought for the Confederacy. Some were slave owners. I appreciate the BF, as they do, as a symbol of the Confederate soldiers who fought and died for a cause they believed in, even if their cause (preservation of slavery) was a very bad one. Still, you can’t “split” the flag in half. Those black and white TV pieces from the 50s and 60s will always be burned in our collective memory. So while some including the S.C.V. want to only see the flag as a symbol of the bravery and elan shown by Confederate soldiers, the BF will always be a symbol of racial intolerance, bigotry and hatred. There is no way that memories from those decades are going to go away — ever. Seems to me that Hardwick and Lyons are beating a dead horse.

  2. Bob Nelson said, on June 2, 2013 at 3:11 pm

    I have seen the photo of the 1st Louisiana with an officer obviously in a Federal uniform, but had never seen and did not know about the “doctored” version. IIRC, the 1st Louisiana was originally formed as a Confederate militia unit made of up of free blacks in New Orleans in late 1861 but was disbanded early in 1862. A number of those men then joined the Federal 1st Louisiana. Guess they just wanted to fight for somebody. LOL

    • SF Walker said, on June 2, 2013 at 6:02 pm

      The doctored version has the Union officer cropped out of the photo, which is really of the 25th USCT. All the enlisted men in the photo are obviously in Federal uniform, too, and equipped with new Enfield rifle muskets, which the Louisiana Native Guard never had.

  3. Corey Meyer said, on June 2, 2013 at 8:51 pm

    I thought the young woman was in jail for some B & E thing…?

  4. theravenspoke said, on June 2, 2013 at 8:51 pm

    I feel sorry for this girl. She was obviously subjected to a program of lies & brainwashing as a child. Her parents made her a pawn in their sad little game. This will follow her around for a long time. Consider her dilemma: accepting the truth is certain to alienate her parents.

    • Andy Hall said, on June 2, 2013 at 8:56 pm

      Being associated with this case is the least of her worries.

  5. Eugene Watson said, on June 3, 2013 at 4:32 pm

    That’s our Obama/Holder agenda. counter sue on BIAS.


  6. Bummer said, on June 4, 2013 at 8:21 am

    This is a truly never ending saga, do these folks ever wear out their media welcome?

    • Andy Hall said, on June 4, 2013 at 8:25 am

      I think they get perpetual coverage because they’re easy stories to write from the perspective of the reporter. You don’t have to read many of these before they begin to sound alike. “Heritage not hate,” “Confederate flag is racist!”, etc. These stories also generate a lot of pageviews for online media, so they’re also “good” stories in that regard.

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