Dead Confederates, A Civil War Era Blog

Happy New Year, Lexington (and a Pretty Good Old Year, Too)!

Posted in Memory by Andy Hall on January 11, 2015

Lexington 2014-15 Guide

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Later this week the Virginia Flaggers, and various other heritage activists outside agitators will head for Lexington to celebrate Lee-Jackson Day, and to protest that city’s ordinance barring non-official government flags from municipal light poles. Again this year, the Virginia Flaggers are calling on everyone who attends to avoid spending any money in town, going so far as to post a convenient map showing the boundaries of the city.

To recap briefly, in the late summer of 2011, the Lexington City Council adopted an ordinance that limited the display of flags on city-owned light poles to the official United States, Virginia and City of Lexington flags. Contrary to what many people seem to believe, this move didn’t impinge on anyone’s individual rights — people are still welcome to display Confederate flags on their own property, parade with them, or loiter on street corners with them. Even their right to act like batshit crazy people remains unaffected by the new ordinance. Personal freedom of expression is alive and well in Lexington.

By barring all flags other than official government ones, the city put itself on solid legal ground. At the time the ordinance was passed, lead Virginia Flagger Susan Hathaway admitted as much, describing the language in the ordinance as “air tight.” The subsequent legal battle in federal court has proved her right, with the Virginia SCV’s challenge to the ordinance being rejected at both the district and circuit court levels.

BootElrodNot long after the City of Lexington passed its ordinance, the Virginia Flaggers announced a couple of other initiatives to get the city’s position reversed. The first was a political campaign (right) to oust the city’s mayor, Mimi Elrod, in the November 2012 municipal elections. That failed when Elrod was handily re-elected with a larger share of the vote than she’d received in 2008. The other initiative was a boycott of businesses in Lexington, the idea being that by making tourism-related small businesses suffer, the Virginia Flaggers would build a groundswell of local support for having the ordinance repealed. This was in spite of the fact that when the City Council held a hearing on the proposed ordinance in 2011, almost all the residents of Lexington who chose to speak on the ordinance expressed support for it; opposition to it came almost entirely from people who don’t actually live in Lexington.

The Virginia Flaggers, and Susan Hathaway in particular, openly acknowledge that the purpose of the boycott is to punish “the town that has turned its back on Lee and Jackson and its rich Confederate heritage.” (Ignore the fact that Lexington and Rockbridge County continue to use Lee and Jackson prominently in their tourism promotion.) Over the last three years the Virginia Flaggers have, from time to time, gleefully pointed to some bad economic news item out of Lexington and taken credit for it. They take considerable pride in claiming to be responsible for imposing economic hardship on their fellow Virginians, which is odd given their tendency to wrap themselves Christian righteousness. Nevertheless, there’s no clear linkage between the Flaggers’ boycott and these events — e.g., the closing of a local theater that had been struggling financially for years prior to the ordinance — and some of their claims, such as increasing unemployment in Lexington since the initiation of the boycott, are patently untrue.

As I’ve noted before, anecdotes about individual businesses and selected datum points don’t really tell the full story. After all, businesses fail and people lose their jobs even in boom times, for reasons that have little to do with the overall local economy. The real story has to be told with the most comprehensive information and data available, and that’s where Lexington’s Comprehensive Annual Financial Report comes in.

Lexington’s annual fiscal year (FY) runs from July 1 to June 30. About sixth months after the end of the fiscal year, the city publishes on its website a detailed report on the city’s finances — revenues, expenditures, debt servicing, all that stuff that makes most peoples’ eyes glaze over. (You can download reports going back to FY2010 here.) But there is one table that’s very relevant to anyone interested in measuring the effects of the Virginia Flaggers’ boycott of the city, the one that lists the City of Lexington’s sources of revenue. Three of them are particularly important measures of tourism-related business activities in the city — local sales and use taxes (i.e., people buyin’ stuff), restaurant food taxes (people eatin’ out), and hotel and motel room taxes (people stayin’ overnight). In the absence of hard (and importantly, all-encompassing) data on business activity in Lexington, these numbers seem to be a pretty good indicator of how things are going.

And how are they going? By these important measures, economic activity in Lexington continues to improve, as it has steadily since the Great Recession. With the recent publication of the FY2014 comprehensive report, we now have five years’ worth of annual data, extending back to July 2009, more than two years before the announcement of the boycott. Here are the actual numbers:

Lexington Revenues.xlsx

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And the trends:

 

Sales Tax Revenue:

Lexington Revenues.xlsx

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Restaurant and Food Tax Revenue:

Lexington Revenues.xlsx

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Motel/Hotel Tax Revenue:

Lexington Revenues.xlsx

 

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So things are looking up in Lexington generally — and steadily — as they have been for years now. There’s no real evidence that the Flaggers’ boycott, that began in the middle of the city’s FY 2012, has had a negative impact on the local economy, much less a substantive one.

That’s not to say that everything’s rosy in Lexington, in terms of the economy. For many years now, Lexington has had a much higher unemployment rate than both the Commonwealth of Virginia and the United States as a whole, but unemployment in Lexington peaked in July 2010, more than a year before the flag ordinance was passed, and has been on a downward trend ever since. (Lexington’s unemployment rate is extremely seasonal, spiking every summer and dropping in the winter, but again that’s a pattern that’s been there for years.) Lexington’s (and Rockbridge County’s) economy draws heavily on Civil War tourism, and that’s likely to drop off some with the end of the sesquicentennial this year. But in broad terms, Lexington appears to be in better shape economically today than it was a year ago, when it was in better shape than the year before, and so on back to 2010.  So congratulations to Lexington on another pretty good year economically, and to an even better year in 2015.

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Checking Back on Lexington

Posted in Memory by Andy Hall on January 17, 2014

ComeHometoLexington

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Today is the Friday before the third Monday in January, and that means it’s  Lee-Jackson Day in Virginia. This seems like an opportune time to check in on Lexington, and see how the Virginia Flaggers’ boycott of the city is going.

Long-time readers here will recall that, as part of their campaign to force the city council to reverse its September 2011 flag ordinance, Confederate Heritage™ advocates urged area residents and visitors to boycott city businesses as a means of putting pressure on the council.

When we last checked, the city had released its comprehensive financial report for FY2012 (July 1, 2011 to June 30, 2012), that covered a period for about ten months after the council vote and the initiation of the boycott. The results were pretty good for the citizens of Lexington, but not so good for those actively working to harm that city’s tourist economy — business activity as measured by sales tax revenue, restaurant food tax revenue and hotel/motel tax revenue all improved substantially over FY2011.

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So how did things go in FY2013 (July 1, 2012 to June 30, 2013)? As it turns out, by those same measures, FY2013 was another good year for tourism-related business in Lexington. Here are the numbers from the city’s Comprehensive Annual Financial Report for FY2013 (p. 91):

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Note that in each of those tourism-related categories, actual revenues exceeded the city’s own budget projections by several thousand dollars (last column).

So after nearly two years of a tourism boycott led by local SCV leader Brandon Dorsey and promoted by the Virginia Flaggers, what’s been the effect on revenues for the city? An increase of nearly $340K over FY2011 levels, led by a whopping 25.5% boost in restaurant food tax revenue in the past year alone:

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LexingtonRevenue2013

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I know Dorsey and the Virginia Flaggers want folks to believe that Lexington has turned its back on Lee and Jackson — a claim that seems ludicrous, given those mens’ prominence in local tourism literature (above) — but their boycott doesn’t seem to be having any more more effect than the”Boot Elrod” campaign did in 2012, when the Lexington mayor was re-elected with a larger share of the vote than in 2008. Unemployment in Lexington remains higher than the national average, but it has been for a long time, since well before the flag ordinance, and is substantially lower than in September 2011. The reality is that Lexington’s tourism-related business numbers are strong, and that part of the local economy is doing better than the U.S. national economy overall.

I sure hope Brandon Dorsey and the Virginia Flaggers decide to organize a boycott of tourism in my town; we could use the boost!

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Lexington Flag Case, Reidsville Monument Updates

Posted in Memory by Andy Hall on May 17, 2013

Oral arguments were held Wednesday in the Virginia SCV’s appeal to reinstate their lawsuit against the City of Lexington, that had been dismissed by the district court last year. There are several news items about this, but the only one I’ve seen that describes events in the courtroom is this item from the Washington Post and the AP:

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The Southern heritage group contends the city snuffed its speech and violated a 20-year-old court order when it enacted an ordinance in September 2011 banishing its flags from holders on dozens of city light poles, other than the city, state and U.S. flags.
 
The three judges of the 4th U.S. Circuit Court of Appeals, which seemed skeptical of the appeal, typically rule in several weeks or more.
 
The group is appealing a decision last summer by a federal judge who concluded the ordinance did not violate a 1993 consent decree, which blocked the city’s attempt to ban the display of the Confederate flag during a parade honoring Jackson.
 
The 2011 ordinance does not restrict the flying of the flag elsewhere in the city.
 
You can still march down Main Street with the flag? Judge Robert King asked.
 
“You can still do that,” replied Thomas E. Strelka, representing the SCV.
 
Strelka argued, however, that the ordinance had “closed a public forum” and the city’s action appeared to be directed at the group.
 
Jeremy E. Carroll, representing the city, said Lexington has the right to say who can used city-owned light poles and the regulation “treats everybody the same.” Local colleges that used to use the poles to fly their banners are also prohibited from using the poles.
 
City officials adopted the ordinance after they received hundreds of complaints after Confederate flags were planted in holders on light poles to mark Lee-Jackson Day, a state holiday in Virginia.
 
The flags were provided by SCV, and the city authorized them to be flown on the city poles. The SCV also paid for city workers to install the flags on approximately 40 poles.

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My earlier thoughts on why the Virginia SCV is probably going to lose this one are here.

In other news, it looks like the Reidsville, North Carolina monument knocked down in an automobile accident two years ago is finally being restored, this time in the Confederate veterans’ plot at the local cemetery, owned by the UDC. The question of who owned the monument itself has been central in the dispute over whether to restore at its previous location or move it to the cemetery, as the UDC wanted to do. Over time, though, challenges to ownership of the monument seem to have fallen away:

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The UDC claimed ownership of the monument shortly after it fell. The city searched for records saying otherwise and never found any.
 
Traveler’s Insurance Company, who represents Vincent, paid the UDC $105,000. The UDC said it planned to use the money to recreate the soldier for the monument and use the original base as the platform.
 
City officials helped the UDC find a new location for the monument. The city deeded a plot of land in Greenview Cemetery to the UDC years prior. The plot houses the body of Confederate soldiers.
 
The Confederate monument continues to be a controversial issue in the community. After the 2011 earthquake, a group, the Historical Preservation Action Committee formed to ensure the monument returned to its original location in the South Scales and West Morehead Streets intersection.
 
In December 2011, the UDC made an announcement it planned to move the monument to the cemetery.
 
HPAC filed a lawsuit against the UDC and the city to stop the monuments removal. The lawsuit included the North Carolina Department of Transportation and the North Carolina Department of Cultural Resources as well.
 
HPAC dropped the city and the UDC from the lawsuit. Davidson County Superior Court Judge Mark Klass dismissed the case citing the organization lacked standing to bring it forward. Rockingham County Judge Moses Massey dismissed the case as well.

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Naturally, the usual crowd is furious about this development, in the comments section. But there’s also this little gem of information, that I hadn’t been aware of before:

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It remains unclear when the soldier might be installed. In a February interview, Ezell said there wasn’t a timetable to install the new soldier. She did add that this soldier would have a Confederate uniform. The previous monument’s designer outfitted the soldier in Union attire.

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You really can’t make this stuff up.

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Stonewall Jackson Killed by His Own Troops (Again)

Posted in Media, Memory by Andy Hall on September 29, 2012

It’s been a little over a year since the Lexington, Virginia City Council voted to bar all but the U.S., Virginia and municipal flags from city-owned light poles in the town. The decision was met with protests then, but there have been relatively few developments since. There was a lawsuit, of course, that was tossed out by the judge in June, and if there have been any other major developments on the legal side of the dispute, I’m not aware of them.

So to keep stirring the pot, now local SCV Camp Commander Brandon Dorsey points to the closure and layoffs as a local tourist attraction the Theater at Lime Kiln. This, Dorsey, claims, is “thanks to Lexington City Council,” and somehow vaguely the result of political correctness. Dorsey doesn’t actually explain the connection, though, which is not really surprising, given that the attached news item about the closure makes no such inference. Indeed, the article makes it clear that the theater has been in dire straits financially for the better part of a decade:

When the theater launched the fund drive earlier this year, Russell said Lime Kiln “has been on life support for the past several seasons.”
 
He said the theater has managed with a staff of three doing the work of 10, but that there were no more expenses that could be cut, while the theater’s facility continued to deteriorate and consume what little cash reserves exist.
 
The theater has asked Lexington and Rockbridge County to make $200,000 in multiyear pledges by Dec. 31, in order to make needed repairs and build a new permanent rain structure. It also is seeking a $93,000 rural development loan from the U.S. Department of Agriculture.
 
When it asked for that help earlier this year, Lime Kiln said it needed a total of $300,000 by the end of the year to do all the work it needed to do in order to present a 10-performance season in 2013. It hopes to grow to 15 performances in 2014 and to become self-supporting.
 
The theater closed for a while in 2005, and now says its signature production, “Stonewall Country,” seriously overstretched its ability to operate, because of its high cost.

My emphasis. For the record, 2005 is SIX YEARS before the Lexington City Council took action on the flag ordinance.

What we have here is, pretty obviously, a case where a long-standing business that’s been teetering on the precipice for years eventually succumbs to hard economic times and competition for visitors’ entertainment dollars. Although the theater’s signature production, “Stonewall Country” (above), focuses on the life of Stonewall Jackson, there’s nothing in the news story that suggests that show, in particular, was struggling due to lack of attendance or a general antipathy toward Confederate subjects.

Dorsey offers no evidence supporting his suggestion that Lexington Mayor Mimi Elrod and her PC minions are the root cause of this event, or why, exactly, they would want the closure of a cultural venue that brings visitors and their dollars to town. And of course the ordinance passed had no bearing on the theater or any other business in Lexington. Dorsey’s claim doesn’t even make sense, frankly. But while we’re busy making unsubstantiated accusations, I’ll toss in one of my own, that at least has some logic to it.

Gary Adams claims that the SCV/Virginia Flagger boycott of Lexington has cost local merchants $633,271 in lost revenue already. Where that number comes from, I have no idea — citing the source of material he posts is not a big priority for him — and I’m dubious that it’s even a real number than can be attributed to the boycott.

But just for the moment, let’s assume this is a real number, and the boycott has cost local visitor-oriented businesses well over half a million dollars. It’s not hard to see that under those circumstances the boycott, cheered on by folks like Dorsey, Billy Bearden and Susan Hathaway, may have played a very direct role the demise of the Theater at Lime Kiln. I remain dubious that the boycott has had much real effect at all, but if it has, as its backers claim, then their fingerprints are all over the pink slips handed out to theater employees last week.

Once again, Stonewall Jackson has been killed by his own troops. Well done, asshats.

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Federal Judge Tosses Lexington Flag Lawsuit

Posted in Memory by Andy Hall on June 14, 2012

Via Kevin, the U.S District Court has granted the City of Lexington’s motion to dismiss the SCV’s lawsuit against the city. Rob Baker points to Judge Samuel Wilson’s ruling:

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.
 
Second, there are highly compelling practical reasons for a city to close its flag poles to private expression. The city that cracks the door to private expression on flag poles practically invites litigation from other groups whose messages it would rather not hoist above the city. Related to that point, private expression might eventually so dominate city flag poles as to swallow whole the flag poles’ actual, official purposes.
 
Third, and finally, the ordinance in this case leaves ample opportunity for SCV and every other group to display the flags of their choice. That is true by the ordinance’s own terms: “Nothing set forth herein is intended in any way to prohibit or curtail individuals from carrying flags in public and/or displaying them on private property.” § 420-205(C)(2). SCV and other groups may therefore carry their flags in parades, fly them from the flag poles at their local offices, or wave them while walking to the grocery store. As such, the ordinance is perfectly reasonable.
 
Because reasonable, nondiscriminatory, content-neutral rules regulating speech in nonpublic fora pass First Amendment constitutional muster regardless of motive, the court will grant the City’s motion to dismiss.

Grafs are added for clarity. And then there’s this:

No court has found that the Constitution compels the government to allow private-party access to government flag poles.

I seem to recall someone saying at the time that the Lexington “ordinance is air tight.” That person was right.

The local SCV, led by Brandon Dorsey, isn’t happy:

As far as I am concerned, this is little different that some states shutting down all their public schools to avoid desegregation and then claiming their motivation for closing them is of no concern because they screwed over everyone.

Of all the possible analogies, Mr. Dorsey, you had to go with that one, didn’t you? It must be hard, getting H. K. Edgerton and Ruby Bridges mixed up like that. Because they’re so much alike, or something. But do try harder next time, please.

Update, June 16: Dorsey’s analogy, comparing the Virginia SCV’s situation to that of African Americans in the Jim Crow South, doesn’t appear to be an off-the-cuff comment; it’s a conscious public relations strategy. Yesterday they vowed to appeal Judge Wilson’s dismissal, and made the same analogy:

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.

“In its written statement. . . .”

Many of us have made the point that, in its public actions and rhetoric, the Southron Heritage™ movement is preaching to the choir; they’re doing and saying things calculated to appeal to fellow true believers, going out of their way to prove they’re more unreconstructed than the next guy. As for winning new supporters to their cause, or shaping broader public opinion, it’s a terrible strategy that only distances them farther from mainstream views and attitudes.

This analogy by Dorsey and his fellows doesn’t help their cause; it actively harms it. Anyone who actually remembers the Civil Rights Movement, or who’s studied it since, will be repulsed by such a comparison, and rightly so. It’s an odious analogy, one that should cost them any benefit of the doubt that the public might be willing to entertain about their motivations and supposed good faith. Kevin is right again: “they deserve everything they get.”

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The Virginia Fraggers

Posted in Memory by Andy Hall on May 19, 2012

Update: Over at SHPG, Susan Hathaway responds to this post, which she refers to as an “irresponsible hit piece on the Flaggers. . . full of holes and untruths.” Okay.

Looks like the Virginia Flaggers are doubling down in their efforts to pick a fight with the leadership of the United Daughters of the Confederacy. You may recall that, back in March, they intentionally violated directives from the UDC not to come onto UDC property — a warning given in person, a few days previous, to Susan Hathaway, the leader of the Flaggers — and then portrayed themselves as the oppressed victim when the local police were called. Of course, the Flaggers initially neglected to mention the whole you were-warned-in-advance part, and only later acknowledged that after the President-General of the UDC, Martha Rogers Van Schaick, released a detailed statement and timeline of her organization’s interactions with the Flaggers, going back to late last year. Hathaway subsequently acknowledged that “the account in the the statement today by Mrs. Van Schaick, with a few minor exceptions, is accurate, and in fact, is almost exactly as has been previously reported.” Well, no, it wasn’t “as has been previously reported,” at least by the Flaggers themselves. They put out a self-serving, incomplete account of events, and it was President-General Van Schaick who called bullshit on them.

This eagerness to pick an entirely unnecessary fight with a group like the UDC, simply because they refuse to play along with the Flagger’s particular brand of activisim (i.e., “restoring the honor”) is just nuts. It’s short-sighted, self-gratifying idiocy. Yes, the UDC is a low-key group and probably pretty set in its ways. Yes, the UDC doesn’t seem interested in making dramatic headlines. The UDC is certainly not beyond criticism, but they’re entirely within their right to decide what issues they want to make a public stand on, just as they’re free to decide who is and who  is not welcome on their property. The only thing the UDC is guilty of is choosing not to play host to the Flaggers’ protest of of the VMFA, the UDC’s own next-door neighbor; everything else is just bombast and angry chest-thumping on the part of the Flaggers.

I read an observation the other day on a completely unrelated subject, to the effect that true believers “always require someone insufficiently pure enough to set themselves against, and they’ll manufacture them out of allies just as soon as they run out of enemies.” There’s a world of truth in that, and it strikes me as a fair assessment of the state of the Confederate Heritage™ movement generally, and the Virginia Flaggers in particular. For all their bluff and bluster, they haven’t got many victories to claim. They did succeed in getting Confederate flags restored to grave sites at a rural cemetery in Georgia, but in their primary protests they’ve been spectacularly unsuccessful. Their first big effort, to prevent passage of a city ordinance in Lexington, Virginia that would bar non-governmental flags from city light poles, was a flop. (No doubt local support for the measure, which was widespread, was in no small part due to the ludicrous spectacle that the out-of-towners brought with them.) There are no Confederate flags displayed at the Pelham Chapel in Richmond. After telling local media to expect “about 1,000 marchers” for the much-heralded Confederate Heritage Rally 2012 in Richmond in February, the actual turnout was about a third of that. No Confederate flag flies outside the Museum of the Confederacy at Appomattox. Mimi Elrod is still mayor in Lexington.

Waite Rawls is still gainfully employed.

With a track record like that, it’s easy to see why folks like Hathaway would decide to create melodramatic stories and faux confrontations. Thus a completely civil sidewalk encounter gets depicted as “Black woman attacked for carrying Confederate Flag.” A Flagger — does he always go around wired for sound? — actually catches on audiotape the egregious abuse of power in which a security guard says, “because I said so.” It’s played up for yucks when, outside the Museum of the Confederacy at Appomattox, the horse of a reenactor portraying General Grant gets spooked by a CBF carried by — you guessed it, a Flagger. They “restore the honor” by flashing  a CBF, hastily pulled out of a back pocket, near the Lincoln Memorial. Something tells me the sixteenth president would be highly amused by that sophomoric foolishness, like one of Tad’s infamous White House pranks. “Lucifer’s Temple,” seriously?

Did y’all remember to write “Abe is a doo-doo-head” in the Park Service restroom stall while you were at it?

So the Southron Heritage™ movement is now, increasingly, turning its rhetorical weaponry on its own members. It’s not an entirely new phenomenon, of course; there have been grumblings about insufficiently-activist SCV camps that “meet, eat, and retreat” for years. Mark Vogl, who was reportedly pushed out of his senior role in the Texas Division of the SCV because that group didn’t want to get dragged into the culture wars battles he was waging, continues to complain about the “grannies” who now lead that group. But the gray-on-gray sniping does seem to have taken on a sharper edge of late, and the Flaggers are in the front rank. The vitriol now directed against fellow heritage advocates is remarkable, with an unprecedented level of nastiness. Conservative Republican governors of a Southern state are derided as “scalawags” and “traitors” for failing to embrace Confederate symbols. A well-known SCV color guard is targeted with epithets of “stink faces (above)” for refusing to renege on a prior agreement to participate in ceremonies at the new Appomattox facility. And now the leadership of the UDC, by declining to participate in shenanigans like this, is guilty of “sell[ing] off their birthright!!!

It’s important to understand that folks like the Flaggers and their supporters, regardless of how much time they spend fluffing reassuring each other that they’re the true Defenders of Southron Heritage, are a small-but-noisy group of folks who aren’t aren’t very representative of Southerners, or even of the descendants of Confederate veterans. They certainly don’t represent the SCV or UDC members I’ve known over the years. The name-calling, sneering mockery and over-the-top rhetoric isn’t the sign of strong, self-confident movement; it’s emblematic of deep and abiding insecurity, a realization that it’s they who are badly out of step with society as a whole, and consequently are desperate to make a name for themselves, even if they have to pick utterly unnecessary fights to do it. The UDC, I’m sure, will survive this just fine, as will the Museum of the Confederacy and the City of Lexington. The Flaggers, not so much, because every contrived outrage distances themselves a little more from the people with whom they should be making common cause.

I used to be pretty ambivalent about the Flaggers; while I thought they were often injecting themselves, as outsiders, in matters that were fundamentally local in nature (e.g., the Lexington ordinance), I also have sympathy, even admiration for acts of smart, clever protest. But after months of watching them their supporters, through their own YouTube clips, blogging, and elsewhere, I’ve come to the conclusion that there’s not a lot of there, there. There’s much angry vitriol and puffery about this or that party not “honoring” the Confederacy, which really seems to begin and end with prominent display of the Confederate Battle Flag. It’s protesting for the sake of protesting, to establish — mainly to each other — that they’re more Southron than all the rest.

So they go off on their own would-be allies, who (in their view) are insufficiently patriotic about the Confederacy. It’s fratricide, it’s unnecessary, and it’s ugly.  The Flaggers and their partners will come out on the short end of this one, and it will be of their own doing.

Have at it, y’all. Knock yourselves out.

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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.

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