Sons of Confederate Veterans, Virginia Division v. City of Lexington , 722 F.3d 224 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1832
SONS OF CONFEDERATE VETERANS, VIRGINIA DIVISION,
Plaintiff – Appellant,
v.
CITY OF LEXINGTON, VIRGINIA; MARILYN E. ALEXANDER; DAVID
COX; MIMI ELROD; T. JON ELLESTAD; BOB LERA; GEORGE R.
PRYDE; CHARLES SMITH; MARY P. HARVEY-HALSETH,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:12-cv-00013-SGW-RSB)
Argued: May 16, 2013 Decided: July 5, 2013
Before KING, DIAZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Diaz and Judge Floyd joined.
ARGUED: Thomas Eugene Strelka, STRICKLAND, DIVINEY & STRELKA,
Roanoke, Virginia, for Appellant. Jeremy E. Carroll, GLENN,
FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellees.
ON BRIEF: Douglas R. McKusick, THE RUTHERFORD INSTITUTE,
Charlottesville, Virginia, for Appellant. Paul G. Beers, GLENN,
FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellees.
KING, Circuit Judge:
The Sons of Confederate Veterans, Virginia Division (the
“SCV”), initiated this action against the City of Lexington,
Virginia, plus several of its officials, alleging that Lexington
City Code section 420-205(C) (the “Ordinance”) contravenes the
SCV’s First Amendment rights and breaches a consent decree
resolving an earlier lawsuit between the SCV and Lexington.
Enacted in 2011, the Ordinance bans any private access to City-
owned flag standards. The district court ruled that the
Ordinance is constitutional and dismissed the Complaint for
failure to state a claim. See Sons of Confederate Veterans, Va.
Div. v. City of Lexington, Va., No. 7:12-cv-00013 (W.D. Va. June
14, 2012) (the “Opinion”). 1 The SCV has appealed, and, as
explained below, we agree with the district court and affirm.
I.
A.
1.
In early 2010, the SCV began planning a parade in honor of
the upcoming Lee-Jackson Day, a holiday held in mid-January in
1
The Opinion is published at 894 F. Supp. 2d 768 and also
found at J.A. 34-43. (Citations herein to J.A. __ refer to the
contents of the Joint Appendix filed by the parties in this
appeal.)
2
the Commonwealth of Virginia to celebrate the births of Robert
E. Lee and Thomas J. “Stonewall” Jackson. 2 Two months
beforehand, the SCV requested permission from the Lexington City
Council to use flag standards affixed to certain light poles
along the street to display the Confederate flag during the
parade. The City Council had theretofore permitted the flag
standards to be used by private organizations, including
Washington and Lee University, the Virginia Military Institute,
and several college fraternities.
At its December 2, 2010 meeting, the City Council granted
the SCV’s request by a five-to-one vote. Soon thereafter, at a
subsequent meeting, the dissenting Councilman moved the adoption
of a “flag/banner” policy, suggesting that the City Attorney and
City Manager be charged with the policy’s development. The
motion passed unanimously, and at a March 2011 meeting — after
the SCV had displayed its Confederate flag at the January 2011
parade — the Council received public comments, most opposing the
display of the Confederate flag within the City.
2
Because the district court resolved this dispute pursuant
to Federal Rule of Civil Procedure 12(b)(6), we accept the facts
alleged in the Complaint as true and view them “in the light
most favorable to the plaintiff.” Spaulding v. Wells Fargo
Bank, N.A., 714 F.3d 769, 776 (4th Cir. 2013). The Complaint is
found at J.A. 5-13.
3
Six months later, in September 2011, Lexington adopted the
Ordinance, restricting any future use of the City-owned flag
standards to three flags only. The Ordinance, codified in the
“Signs” article of the “Zoning” chapter of the Lexington City
Code, provides:
(1) Only the following flags may be flown on the flag
standards affixed to light poles in the City and no
others:
(a) The national flag of the United States of
America (the “American flag”).
(b) The flag of the Commonwealth of Virginia,
Code of Virginia, Title 1, Chapter 5.
(c) The City flag of Lexington.
(2) The American flag, the flag of the Commonwealth of
Virginia and the City flag of Lexington may be flown
by the City on the light poles that have flag
standards affixed to them on dates adopted by City
Council. . . . Currently the holidays or designated
days are as follows: Independence Day, Labor Day,
Veterans Day, Flag Day, Martin Luther King Day,
Memorial Day, Lee-Jackson Day, Presidents Day, and on
the day of the annual Rockbridge Community Festival.
On such dates or days the flag(s) may be flown for
more than one day. No other flags shall be permitted.
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.
Lexington City Code § 420-205(C) (2011).
2.
Similar to this action, the SCV had sued the City in 1993,
alleging constitutional violations involving the display of the
Confederate flag. See Sons of Confederate Veterans, Va. Div. v.
4
City of Lexington, No. 7:93-cv-00492 (W.D. Va. 1993). That
lawsuit arose out of the 1991 rededication of a Stonewall
Jackson statue in Lexington. Members of the SCV sought to
display the Confederate flag as they marched in a parade
celebrating the occasion, but, as alleged, the City prohibited
the display. That suit was settled by a “Consent Decree,” under
which the City and its agents were permanently enjoined from
denying or abridging the rights of the SCV and its members
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 to bring
into public notice any logo of “stars and bars” that
ever was used as a national or battle flag of the
Confederacy.
Consent Decree 2. 3
B.
On January 12, 2012, the SCV filed its two-count Complaint
against Lexington, six of its City Council members, the Mayor,
and the City Manager (collectively, the “City”). The first
claim, entitled “Civil Contempt,” alleges that the Ordinance
impermissibly conflicts with the Consent Decree. The second
claim, designated simply as “42 U.S.C. § 1983,” asserts that
3
The district judge presiding over this case also presided
over the 1993 proceedings and entered the Consent Decree, which
is found at J.A. 14-18.
5
enactment of the Ordinance was the City’s response to the SCV’s
request to engage in protected expression within the “flag
standard forum” and, thus, constitutes viewpoint and content
discrimination that is violative of the Free Speech Clause. The
Complaint seeks declaratory relief, an adjudication of civil
contempt, fees, costs and sanctions, plus damages.
On March 21, 2012, the City moved to dismiss the Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The motion made several points, including that the
flag standards are not a public forum and the Ordinance survives
constitutional scrutiny because it is reasonable and viewpoint
neutral. The City also maintained that the Ordinance is
consistent with the Consent Decree, which only enforced the
SCV’s existing First Amendment rights, without creating any
special right for the SCV to display flags from government
property.
Although the district court granted the motion to dismiss
by its Opinion of June 14, 2012, the court rejected the City’s
assertion that the flag standards are non-public forums. The
court explained that, although flag standards are not a
traditional public forum, the SCV had alleged facts showing that
Lexington had established them as such by allowing private
entities to use them. Viewing the allegations of the Complaint
in the light most favorable to the SCV, the court proceeded
6
“under the assumption that the City created a designated public
forum when it allowed private entities to fly their flags from
city-owned flag poles.” Opinion 8. The court therefore
assessed whether Lexington was entitled to close the designated
public forum, recognizing that
[m]otive is a central issue in certain constitutional
inquiries when government action has a discriminatory
effect. And, “[t]o be sure, if a government
regulation is based on the content of the speech or
the message, that action must be scrutinized more
carefully to ensure that communication has not been
prohibited merely because public officials disapprove
the speaker’s view.”
Id. at 6-7 (footnote omitted) (quoting U.S. Postal Serv. v.
Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 132 (1981)).
The court determined that, because the Ordinance “makes no
distinction as to viewpoint or subject matter and advances no
particular position,” it is content neutral. Id. at 8. As a
result, the alleged discriminatory motivation of the City in
closing the forum does not taint the otherwise facially valid
ordinance. Id. at 8-9.
Next, the district court ruled that the Ordinance is
reasonable, emphasizing that “[t]he 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 speech.” Opinion 9. The court recognized
that there were compelling and practical reasons for Lexington
7
to close its flag standards to the public, such as the
possibility of the City being forced to hoist messages with
which it would rather not associate, and the potential for
private expression to subsume the intended official purpose of
the flag standards. The Opinion stressed that the Ordinance
“leaves ample opportunity for [the] SCV and every other group to
display the flags of their choice.” Id. Finally, the court
concluded that, because “the City has not abridged [the] SCV’s
constitutional rights, . . . the City has not violated the 1993
consent decree.” Id. at 10.
The SCV filed a timely notice of appeal, asking us to
reverse the judgment of the district court. We possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review de novo the dismissal of a complaint for failure
to state a claim. See Brown v. N.C. Dep’t of Corr., 612 F.3d
720, 722 (4th Cir. 2010). As the Supreme Court has explained,
“Rule 12(b)(6) authorizes a court to dismiss a claim on the
basis of a dispositive issue of law.” Neitzke v. Williams, 490
U.S. 319, 326 (1989).
8
III.
The SCV contends that the district court erred in
determining that, because the Ordinance is facially neutral, the
City’s motivation for closing the designated public forum was
immaterial. Maintaining that the City’s restriction of the flag
standards was viewpoint-based, the SCV argues that “[c]ontrary
to the District Court’s ruling, a governmental entity’s decision
to close a forum for expression . . . is not unconstrained by
constitutional principles, and the closing may not be
accomplished in order to censor a viewpoint that has been
expressed in the forum.” Br. of Appellant 16. 4 The SCV further
contends that, even if the Ordinance does not violate the Free
Speech Clause, it conflicts with the Consent Decree because, “by
making it a violation of local law to display or show a
Confederate flag on a flag standard on one or more of the light
poles within the City of Lexington, the Defendants have denied
and/or abridged the rights of the [SCV] as provided by the
[Consent Decree].” Id. at 23.
4
The SCV explains that the constitutional right being
abridged is that protecting freedom of expression, specifically
guaranteed by the Free Speech Clause of the First Amendment.
Pursuant thereto, “Congress shall make no law . . . abridging
the freedom of speech.” U.S. Const. amend. I. The Free Speech
Clause applies to the various states through the Fourteenth
Amendment. See Snyder v. Phelps, 580 F.3d 206, 214 n.4 (4th
Cir. 2009).
9
In response, the City revives its contention that the City-
owned flag standards are nonpublic forums and the Ordinance
satisfies the relevant requirement that it be reasonable and
viewpoint neutral. Nonetheless, the City also contends that,
even if the flag standards are designated public forums, the
Ordinance is constitutional “[b]ecause the Flag Ordinance is
reasonable and facially neutral and there is no allegation that
it has any discriminatory effect.” Br. of Appellees 36.
Additionally, the City maintains that the Ordinance is
consistent with the purpose and plain language of the Consent
Decree. 5
A.
1.
In assessing a First Amendment claim relating to private
speech on government property, we must first identify the nature
of the forum at issue — here, the City’s flag standards affixed
to its light posts. See Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 761 (1995) (explaining that “[t]he right
to use government property for one’s private expression depends
5
In disposing of this appeal, we need not address the
City’s alternate contention, made in the district court and
herein, that flags flown on the City-owned flag standards
constitute government speech and are not subject to any First
Amendment protection. See Johanns v. Livestock Marketing Ass’n,
544 U.S. 550, 553 (2005) (“[T]he Government’s own speech . . .
is exempt from First Amendment scrutiny.”).
10
upon” the nature of the property); Int’l Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)
(recognizing “forum based” approach to assessing speech
restrictions that government places on its property).
As our Court has recognized, “[i]n deciding whether
government property should be made available for protected
expressive activity . . . , we apply different levels of
protection for different types of government property.” News &
Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 577 (4th Cir. 2010). First, public forums have been
defined by the Supreme Court as “places which by long tradition
or by government fiat have been devoted to assembly and debate,”
and they are subject to stringent First Amendment protection.
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,
45-46 (1983); see also Cornelius v. NAACP Legal Defense & Educ.
Fund, Inc., 473 U.S. 788, 817 (1985) (recognizing parks,
streets, and sidewalks as “quintessential public forums”). A
governmental restriction on speech in a public forum is subject
to strict scrutiny, which requires the proponent of the
restriction to “show that its regulation is necessary to serve a
compelling state interest and that it is narrowly drawn to
achieve that end.” Perry Educ. Ass’n, 460 U.S. at 45 (citing
Carey v. Brown, 447 U.S. 455, 461 (1980)).
11
Government property may also be classified as a “nonpublic
forum,” that is, “[p]ublic property which is not by tradition or
designation a forum for public communication.” Perry Educ.
Ass’n, 460 U.S. at 45-46. A nonpublic forum — such as an
airport, see Int’l Soc’y for Krishna Consciousness, 505 U.S. at
679, or an election polling place, see Minn. Majority v. Mansky,
708 F.3d 1051, 1057 (8th Cir. 2013) — is entitled to less
protection from governmental restriction than a public forum. A
regulation of speech in a nonpublic forum will be upheld if it
“‘is reasonable and not an effort to suppress expression merely
because public officials oppose the speaker’s view.’”
Multimedia Publ’g Co. of S.C. v. Greenville-Spartanburg Airport
Dist., 991 F.2d 154, 159 (4th Cir. 1993) (quoting Perry Educ.
Ass’n, 460 U.S. at 46).
In resolving this appeal, we agree with the district court
that, viewing the Complaint in the light most favorable to the
SCV, the City’s flag standards fall under a third category
denominated as “designated public forums.” Such a forum is a
nonpublic government site that has been made public and
“generally accessible to all speakers.” Child Evangelism
Fellowship of Md., Inc. v. Montgomery Cnty. Pub. Sch., 457 F.3d
376, 382 (4th Cir. 2006). A designated public forum may be made
available “for use by the public at large for assembly and
12
speech, for use by certain speakers, or for the discussion of
certain subjects.” Id.The SCV alleges that the City allowed private speakers
access to its flag standards between 1994 and 2011. For
instance, in September 1994, the City Council granted requests
from both Washington and Lee and VMI to fly flags representing
those institutions from the flag standards “on three occasions
per year.” Complaint ¶ 21. In 2005, a social fraternity was
granted permission to fly its flag from the standards, and, in
2009, other social organizations were granted permission to fly
flags from the standards. Id. ¶¶ 22-23. Viewing those
allegations in the light most favorable to the SCV, we are
satisfied that the City designated its flag standards as a
public forum because it has “purposefully opened [them] to the
public, or some segment of the public, for expressive activity.”
ACLU v. Mote, 423 F.3d 438, 443 (4th Cir. 2005) (emphasizing
that “‘[t]he government does not create a public forum by
inaction or by permitting limited discourse, but only by
intentionally opening a nontraditional forum for public
discourse’” (quoting Cornelius, 473 U.S. at 802)).
2.
Because the City’s flag standards constitute a designated
public forum, we turn to an assessment of whether the City
properly closed that forum when it enacted the Ordinance in
13
2011. This dispute is distinguishable from our prior decisions
on designated public forums, in which the applicable level of
scrutiny has depended on the type of speech or speakers that the
government sought to exclude. See, e.g., Mote, 423 F.3d at 444(explaining that “internal” or “external” standards of review
apply depending on type of speaker excluded in designated public
forum); Goulart v. Meadows, 345 F.3d 239, 250 (4th Cir. 2003)
(same); Warren v. Fairfax Cnty., 196 F.3d 186, 193-95 (4th Cir.
1999) (same). Here, the City did not exclude either a specific
speaker or a specific class of speech, but closed a designated
public forum by disallowing all private expression from its flag
standards.
It is important to our resolution of this case that the
Supreme Court has recognized that “a state is not required to
indefinitely retain the open character of [a designated public
forum].” Perry Educ. Ass’n, 460 U.S. at 46; see also Cornelius,
473 U.S. at 802 (recognizing that government is not required to
retain open nature of designated public forum); Currier v.
Potter, 379 F.3d 716, 728 (9th Cir. 2004) (observing that
government may close designated public forum “whenever it
wants”); Make the Road by Walking, Inc. v. Turner, 378 F.3d 133,
143 (2d Cir. 2004) (advising that a “government may decide to
close a designated public forum”); United States v. Bjerke, 796
F.2d 643, 687 (3d Cir. 1986) (observing that “officials may
14
choose to close . . . a designated public forum at any time”).
Although the First Amendment guarantees free speech in a public
forum, it does not guarantee “access to property simply because
it is owned or controlled by the government.” U.S. Postal Serv.
v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129 (1981).
As long as a designated public forum remains open, “it is bound
by the same standards as apply in a traditional public forum.”
Perry Educ. Ass’n, 460 U.S. at 46. Here, the designated forum
was closed in 2011, and thus, it is no longer protected as a
public forum.
The SCV’s primary contention on appeal — that the motive
behind the Ordinance dictates its constitutionality — lacks
controlling precedent. The Supreme Court’s decision in Hill v.
Colorado illustrates the point, explaining that “the contention
that a statute is ‘viewpoint based’ simply because its enactment
was motivated by the conduct of the partisans on one side of a
debate is without support.” 530 U.S. 703, 724 (2000). Relying
on Frisby v. Schultz, 487 U.S. 474 (1988), the Court explained
that it had, in the past, recognized a picketing ordinance as
constitutional that “was obviously enacted in response to the
activities of antiabortion protesters who wanted to protest at
the home of a particular doctor.” Hill, 530 U.S. at 725. The
Free Speech Clause only “forbids Congress and . . . the States
from making laws abridging the freedom of speech — a far
15
different proposition than prohibiting the intent to abridge
such freedom.” Grossbaum v. Indianapolis-Marion Cnty. Bldg.
Auth., 100 F.3d 1287, 1293 (7th Cir. 1996) (internal quotation
marks omitted). Furthermore, “‘[w]e are governed by laws, not
by the intentions of legislators.’” Id. (quoting Conroy v.
Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in
judgment)).
The Ordinance has the effect of closing a designated public
forum — the perpetual availability of which was never guaranteed
— to all private speakers. The City was entitled to listen to
the public and to enact ordinances that are constitutional in
text and in operation, and that are supported by the electorate.
Notably, the Ordinance specifies that it does not “prohibit or
curtail individuals from carrying flags in public and/or
displaying them on private property.” Lexington City Code
§ 420-205(C) (2011). As a result, all private groups and
individuals remain free to express their flag-bound messages in
other ways.
The SCV nevertheless maintains that the motive of the City
in enacting the Ordinance is “highly relevant” to our analysis,
and that the discriminatory motive is sufficient for the
Complaint to survive a Rule 12(b)(6) challenge. See Br. of
Appellant 21. The authorities relied upon by the SCV, however,
fail to convince us that the City’s alleged desire to remove the
16
Confederate flag from its standards renders the Ordinance
unconstitutional. The SCV relies on certain decisions that, it
says, link the constitutionality of a challenged statute to a
discriminatory legislative motive in its enactment. Those
cases, however, do not involve a government property forum
analysis, else they implicate the Free Exercise Clause or the
Equal Protection Clause, as opposed to the Free Speech Clause.
See Student Gov’t Ass’n v. Bd. of Trs. of Univ. of Mass., 868
F.2d 473, 480 (1st Cir. 1989) (upholding university’s decision
to abolish student legal services office, but relating in dicta
that “[o]nce the state has created a forum, it may not . . .
close the forum solely because it disagrees with the messages
being communicated in it”); Joyner v. Whiting, 477 F.2d 456 (4th
Cir. 1973) (prohibiting university from shutting down student
newspaper because administration disagreed with segregationist
viewpoints being espoused therein); see also Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533
(1993) (explaining that “if the object of a law is to infringe
upon or restrict practices because of their religious
motivation, the law is not neutral”); Crawford v. Bd. of Educ.
of City of L.A., 458 U.S. 527, 544 (1982) (recognizing that
facially neutral statute may contravene the Fourteenth Amendment
if enacted with discriminatory purpose).
17
The argument that a legislative motive matters — in the
nature of a “clean hands” equity contention — does not assist
our inquiry here. A government is entitled to close a
designated public forum to all speech. Reading a clean-hands
requirement into the closure of such a forum is not supported by
precedent and could produce an absurd result. For example, the
City could be beholden to the SCV and other private groups or
individuals (e.g., pro-choice activists, the Ku Klux Klan, the
Libertarian Party, etc.) that insisted on hoisting their flags
on City-owned standards, notwithstanding that the City would
prefer to reserve its equipment purely for government speech.
In other words, it appears that the City experimented with
private speakers displaying flags on the City’s standards, and
that effort turned out to be troublesome. It was entitled,
under the controlling principles, to alter that policy.
Because the City’s flag standards are not a traditional
public forum, there is no legal support for requiring the City
to relinquish its control over them. Inasmuch as the Ordinance
was lawfully enacted to close a designated public forum, we
affirm the dismissal of the SCV’s free speech claim.
B.
Turning to the civil contempt claim relating to the Consent
Decree, we agree with the district court that, because there is
no constitutional violation posed by the Ordinance, there could
18
be no violation of the Decree. The Decree bars the City from
denying the SCV the right to display the Confederate flag at any
“government-controlled place or event which is to any extent
given over to private expressive activity.” Consent Decree 2.
Had the City not enacted the Ordinance, its rejection of the
SCV’s request to displays flags on the flag standards may have
violated the Decree. The City, however, has now
constitutionally abolished “private expressive activity” from
its flag standards.
The SCV also argues that, because the City’s flag standards
were at one point given over to private expressive activity,
they are controlled by the Consent Decree regardless of the
constitutionality of the Ordinance. But because the flag
standards are no longer given over to private expression, their
use is not governed by the Consent Decree. The district court
thus properly rejected the SCV’s claim.
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
19