RICHMOND, Va. — The U.S. Court of Appeals for the Fourth Circuit heard arguments today in a First Amendment lawsuit filed by The Rutherford Institute, which alleges that the City of Lexington, Va., violated the Constitution by prohibiting a civil war heritage society from flying the Confederate flag on flag standards maintained by the city. Institute attorneys asked the appeals court to reverse a ruling by the U.S. District Court for the Western District of Virginia, which dismissed the lawsuit on behalf of the Sons of Confederate Veterans (SCV) on the grounds that the City was free to adopt an ordinance denying private parties the use of flag standards along City streets even though it had previously allowed local organizations to fly their flags from the standards. In arguments to the three-judge appeals panel, Rutherford Institute attorneys contend that the City's motive for adopting the flag ordinance—allegedly in response to an SCV request to fly the Confederate flag and because of the City's opposition to the message conveyed by that flag—was colored by a desire to silence the SCV's speech.
"The First Amendment was penned by the Framers of the Constitution to protect our ideas and speech, both the popular and the unpopular," stated John W. Whitehead, president of The Rutherford Institute. "The issue here is not whether the Confederate flag should be displayed but whether we, as Americans, remain committed to the idea of free speech. If we allow the censoring of something simply because it may be controversial, we open the door for the government to discard anything deemed disturbing or offensive."
The Sons of Confederate Veterans (SCV) is a nonpolitical fraternal organization that seeks to recognize and preserve the heritage and history of military personnel who fought for the Confederate States of America during the Civil War. In early 2010, the SCV began planning and organizing a parade to be held in January 2011, in Lexington, Va., a city with rich ties to Confederate history. For example, Lexington was the home of Gen. Thomas "Stonewall" Jackson, who is also buried in Stonewall Jackson Memorial Cemetery. Gen. Robert E. Lee also is buried in Lexington at the chapel of Washington & Lee University, where Gen. Lee served as president from 1865 until his death in 1870. Lee-Jackson Day has also been designated as an annual holiday every January in the Commonwealth of Virginia. As part of its preparations for the parade, the SCV requested permission to temporarily display the Confederate flag from street standards owned by the city. In years past, other groups, such as college fraternities, had been granted permission to fly their flags from the standards for special events. Although the SCV's request created some controversy, city officials granted them permission to temporarily display the Confederate flag during the January 2011 event. However, at a March 2011 meeting to discuss the policy governing use of the flag standards, several persons expressed opposition to the Confederate flag display. Subsequently, in September 2011, the City adopted an ordinance providing that only the national flag of the United States, the flag of the Commonwealth of Virginia and the City flag of Lexington may be flown from the standards on designated holidays. In filing the First Amendment lawsuit in January 2012, Institute attorneys alleged that the City not only violated a 1993 injunction assuring the SCV of the right to display the Confederate flag but also discriminated against the SCV in violation of their right to free speech and equal protection under the law. The Rutherford Institute is working in conjunction with attorney Thomas E. Strelka of Roanoke, Va., in representing the SCV.