Richard Leake v. James T. Drinkard ( 2021 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13868
____________________
RICHARD LEAKE,
MICHAEL DEAN,
Plaintiffs-Appellants,
versus
JAMES T. DRINKARD,
In his personal capacity and official capacity as
Assistant City Administrator of City of Alpharetta, Georgia,
Defendant-Appellee.
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2 Opinion of the Court 20-13868
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-03463-WMR
____________________
Before WILLIAM PRYOR, Chief Judge, LAGOA, Circuit Judge, and
SCHLESINGER,* District Judge.
WILLIAM PRYOR, Chief Judge:
In Walker v. Texas Division, Sons of Confederate Veterans,
Inc., the Supreme Court clarified that, “[w]hen [the] government
speaks, it is not barred by the Free Speech Clause from determining
the content of what it says.” 576 U.S. 200, 207 (2015). Some of the
Sons of Confederate Veterans did not get the message. A member,
Richard Leake, applied to participate in the Old Soldiers Day Pa-
rade, a pro-American veterans parade funded and organized by the
City of Alpharetta, Georgia. The City informed Leake that the Sons
of Confederate Veterans would be allowed to participate, but only
if it agreed not to fly the Confederate battle flag. Not content with
this offer, Leake and Michael Dean, another Son, filed a civil-rights
action against City officials, 42 U.S.C. § 1983, alleging that the City
violated their constitutional rights to speak freely under the First
and Fourteenth Amendments. The district court held that the
*Honorable Harvey Schlesinger, United States District Judge for the Middle
District of Florida, sitting by designation.
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20-13868 Opinion of the Court 3
Parade constituted government speech and entered summary judg-
ment against the Sons. Because governments are not obliged under
the First and Fourteenth Amendments to permit the presence of a
rebellious army’s battle flag in the pro-veterans parades that they
fund and organize, we affirm.
I. BACKGROUND
The Old Soldiers Day Parade began after the Civil War in
the City of Alpharetta to honor veterans of that war, but the Parade
was discontinued after a few years. The City resumed the Parade
in 1952 after a small group of residents wanted to recognize local
war veterans. The City has sponsored the Parade every year since
then.
The 67th Annual Old Soldiers Day Parade was held on Au-
gust 3, 2019. On its website, the City promoted the Parade “as a
way to celebrate and honor all war veterans, especially those from
Alpharetta, who have defended the rights and freedoms enjoyed by
everyone in the United States of America.” “The goal of this pa-
rade,” according to the City’s advertisement, “is to celebrate Amer-
ican war veterans and recognize their service to our country.” The
City’s advertisement identified the “City of Alpharetta and Ameri-
can Legion Post 201” as “hosts [of] the Annual Old Soldiers Day
Parade.” Although the Legion was involved, the City was the Pa-
rade’s primary financial sponsor and was responsible for almost all
its costs (about $28,400). By contrast, the Legion did not financially
contribute any significant amount.
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This controversy arose from the process for determining
which private organizations would be permitted to participate in
the Parade. That process began with an application. And the appli-
cation identified the theme of the Parade: “The American Legion -
A Century of Service.” The application form included logos of both
the Legion and the City. It instructed applicants to mail or fax the
application to the “Parade Marshal” at “American Legion Post 201
c/o City of Alpharetta Special Events” and listed government mail-
ing and email addresses. The final decision about whether to per-
mit an entity’s participation in the Parade was made by the City
based on the message the Mayor and City Council wanted the Pa-
rade to communicate. The Legion did not determine who partici-
pated in the Parade.
On the Monday after Independence Day in 2019, Richard
Leake completed an application on behalf of the Roswell Mills
Camp Sons of Confederate Veterans, of which he is a member. The
application asked for a detailed description of the Sons of Confed-
erate Veterans’s float. Leake wrote that there would be a “[t]ruck
pulling trailer with participants holding unit flags.” The application
also asked applicants to “write a description of what you would like
to say about your group or organization as you pass the Reviewing
Stand.” Leake wrote that they would say that the Sons of Confed-
erate Veterans is an “organization dedicated to preserving the
memory of our ancestors who served in the War Between the
States and ensuring that the Southern view of that conflict is pre-
served.” The application required that the Sons of Confederate
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20-13868 Opinion of the Court 5
Veterans agree to “abide by all rules and regulations set forth by
the event organizers[, the City of Alpharetta and the American Le-
gion Post 201,] in the Old Soldiers Day Parade.” Leake signed the
application.
The following day, James Drinkard, the Assistant City Ad-
ministrator, sent a letter to Leake in response to his application.
The letter was sent “following approval from Mayor Gilvin.” In the
letter, Drinkard reiterated that the purpose of the Parade is to
“unite our community” to “celebrat[e] American war veterans,”
and that, in the light of that purpose, “there is cause to question the
appropriateness of participation by an organization devoted exclu-
sively to commemorating and honoring Confederate soldiers.” (In-
ternal quotation marks omitted.)
Drinkard’s letter stated “that the Confederate Battle Flag has
become a divisive symbol that a large portion of our citizens see as
symbolizing oppression and slavery.” In the City’s view, that divi-
siveness would draw “the spotlight away from the goals of the . . .
Parade and the service of our American war veterans.” (Emphasis
added.) The letter continued, “the City of Alpharetta will maintain
its decision, supported unanimously by Mayor Gilvin and the City
Council, to not allow the Confederate Battle Flag to be flown in
the Old Soldiers Day Parade.”
The City offered to allow the Sons of Confederate Veterans
to participate in the Parade “absent the Confederate Battle Flag.”
The Sons of Confederate Veterans would also have to agree not to
do anything “that would detract from the event goal of uniting our
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community for the purpose of celebrating American war veter-
ans.” Drinkard informed Leake that “the City of Alpharetta [would]
approve [his] application” if he were to agree to these conditions.
Three days before the Parade, Leake and Dean sued
Drinkard and other City officials, including Mayor Gilvin, for vio-
lating their right to free speech under the First and Fourteenth
Amendments. The Sons sought monetary damages for the viola-
tion of their rights, as well as equitable relief in the form of a tem-
porary restraining order, a preliminary injunction, and a perma-
nent injunction, so that they could participate with the Confeder-
ate battle flag in the upcoming Parade and in future ones. See 42
U.S.C. § 1983. On the day before the Parade, the district court re-
served ruling on the motion for a temporary restraining order and
declined to issue an injunction. The Parade went ahead as planned,
without the participation of the Sons of Confederate Veterans,
whose sympathizers instead flew the Confederate battle flag along
the side of the Parade route.
Later that year, the Mayor and City Council formally re-
solved “that the City of Alpharetta shall no longer sponsor or finan-
cially support future Old Soldiers Day Parades.” The City then
moved for summary judgment, arguing that the Parade constituted
government speech and that the claim for injunctive relief was now
moot because of the City’s formal resolution to discontinue its
sponsorship of the Parade in the future. The district court later
granted summary judgment for the City on the ground that the
Parade constituted government speech.
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II. STANDARD OF REVIEW
“We review a summary judgment de novo.” Mech v. Sch.
Bd., 806 F.3d 1070, 1074 (11th Cir. 2015) (internal quotations marks
omitted). Summary judgment is appropriate in this case if, after
viewing the record in the light most favorable to the Sons, id.,“there is no genuine dispute as to any material fact” such that the
City “is entitled to judgment as a matter of law,” FED. R. CIV. P.
56(a).
III. DISCUSSION
For the Sons to prevail in this civil-rights action, 42 U.S.C.
§ 1983, they must show that they were “deprived of a federal right
by a person acting under color of state law.” Griffin v. City of Opa-
Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). The City admits that it
acted under color of state law when it prohibited the Sons from
displaying the Confederate battle flag at the Parade. The parties
dispute whether the City deprived the Sons of their right to speak
freely under the First and Fourteenth Amendments. The City ar-
gues that there was no deprivation because the Parade constituted
the City’s speech; the Sons argue the contrary. We agree with the
City.
The First Amendment provides in relevant part that “Con-
gress shall make no law . . . abridging the freedom of speech.” U.S.
CONST. AMEND. I. This “personal” right is now protected against
State abridgment by the Fourteenth Amendment. Gitlow v. New
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8 Opinion of the Court 20-13868
York, 268 U.S. 652, 666 (1925). But whether that personal right has
been abridged depends crucially on whose speech is at issue.
The First Amendment works as a shield to protect private
persons from “encroachment[s] by the government” on their right
to speak freely, Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.
of Bos., Inc., 515 U.S. 557, 566 (1995), not as a sword to compel the
government to speak for them. In other words, “[t]he Free Speech
Clause of the First Amendment ‘restricts government regulation of
private speech; it does not regulate government speech.’” Mech,
806 F.3d at 1074 (quoting Pleasant Grove City v. Summum, 555
U.S. 460, 467 (2009)). That is, “[a] government entity has the right
to speak for itself,” which consists generally in the ability “to say
what it wishes” and “to select the views that it wants to express.”
Summum, 555 U.S. at 467–68 (internal quotation marks omitted).
When the government speaks, it may refuse to endorse or
freely remove speech of which it disapproves. Mech, 806 F.3d at
1074. And “[p]arades are . . . a form of expression” that involve
“marching to make a point.” Hurley, 515 U.S. at 568. It follows that,
if the Parade was the City’s speech, the City was free to condition
the Sons’ participation in the Parade on their not displaying the
Confederate battle flag; the Sons’ “case could not [then] proceed
under the Free Speech Clause.” Cambridge Christian Sch., Inc. v.
Fla. High Sch. Athletic Ass’n, 942 F.3d 1215, 1230 (11th Cir. 2019).
In a word, if the Parade was government speech, the Sons lose.
Mech, 806 F.3d at 1074.
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What makes speech government speech? Although we lack
a “precise test,” id., there are three factors we use to distinguish
government speech from private speech: history, endorsement,
and control, Cambridge, 942 F.3d at 1230. “The first factor—his-
tory—directs us to ask whether the type of speech under scrutiny
has traditionally ‘communicated messages’ on behalf of the gov-
ernment.” Id. at 1232 (quoting Walker, 576 U.S. at 211). The second
factor—endorsement—asks whether “observers reasonably be-
lieve the government has endorsed the message.” Mech, 806 F.3d
at 1076. “Finally, the control factor asks whether the relevant gov-
ernment unit ‘maintains direct control over the messages con-
veyed’ through the speech in question.” Cambridge, 942 F.3d at
1234 (quoting Walker, 576 U.S. at 213).
These factors are neither individually nor jointly necessary
for speech to constitute government speech. See Mech, 806 F.3d at
1075–76. But a finding that all evidence government speech will al-
most always result in a finding that the speech is that of the gov-
ernment. See, e.g., Walker, 576 U.S. at 210–14; Dean v. Warren,
No. 19-14674, slip op. at 33–38 (11th Cir. 2021). And all three factors
support the City’s position that the Parade constituted its speech.
A. History
The history of military parades in general, and this Parade in
particular, weighs in favor of finding that the Parade was govern-
ment speech. Just as “[g]overnments have long used monuments
to speak to the public” and “commemorate military victories and
sacrifices,” Summum, 555 U.S. at 470, so too governments of all
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kinds have from time immemorial used parades to communicate
the same kinds of messages. Examples are legion. Take one: The
Roman triumphs were “famous parades through the city of Rome
that celebrated Rome’s greatest victories against its enemies.”
MARY BEARD, THE ROMAN TRIUMPH 1 (2009). And they also in-
volved celebrating war veterans. Id. (“To be awarded a triumph
was the most outstanding honor a Roman general could hope
for.”).
Since then, governments, up to and including the United
States, have used triumph parades to celebrate their militaries. For
example, in 1899 “the victories of Admiral George Dewey in the
Spanish-American War were celebrated with a triumphal parade in
New York” and “a special triumphal arch was built . . . at Madison
Square.” Id. at 2. So the particular medium of communication at
issue here—a parade—is one that, since “ancient times,” Summum,
555 U.S. at 470, “has traditionally ‘communicated messages’ on be-
half of the government,” Cambridge, 942 F.3d at 1232 (quoting
Walker, 576 U.S. at 211). And the “kind of speech” conveyed
through that medium—celebration of the military—is one that was
“often closely identified in the public mind with the government.”
Id. (internal quotation marks omitted).
The history of this Parade especially fits within the general
history of government-sponsored parades. The City has sponsored
the Parade every year since 1952. The Parade’s central purpose was
to honor and celebrate American war veterans. The 2019 Parade’s
purpose and message were the same. And the City remained its
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only significant financial sponsor. So history establishes both that
the medium used here and the message conveyed through it are
ones traditionally associated with governments. It follows that this
factor favors the City. See Mech, 806 F.3d at 1075–76 (“A medium
that has long communicated government messages is more likely
to be government speech . . . .”).
B. Endorsement
The City expressly “endorsed the [Parade’s] message,”
which “strongly suggests that the [Parade] [is] government
speech.” Id. at 1076. The City publicly advertised and promoted the
2019 Parade on its website, where it identified itself and the Legion
as co-hosts. The City publicly identified the “goal of th[e] parade”
as the celebration of “American war veterans” and the recognition
of “their service to our country.” The City publicly endorsed the
sentiment that “all war veterans, especially those from Alpharetta”
should be “celebrate[d] and honor[ed].” And the City publicly ad-
vertised that the Parade would open with a performance by the
City Band. “[O]bservers [would have] reasonably believe[d] the
government ha[d] endorsed the [Parade’s] message” because the
City expressly and publicly did so. Mech, 806 F.3d at 1076; see also
Dean, No. 19-14674, slip op. at 35 (concluding that “there is no
doubt that Kennesaw State University endorses the message con-
veyed by its cheerleading team” because of express statements on
the athletics department’s website evidencing that cheerleaders
“are expected to convey a message of which the university ap-
proves”).
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The Legion’s involvement does not undermine this conclu-
sion. To be sure, Drinkard asserted in an email that the Parade “is
largely viewed as the Legion’s event.” But he admitted in the same
sentence that “the event is put on as a partnership between the
American Legion and the City.” (Emphasis added.) That partner-
ship was a matter of public knowledge. And a partnership “suggests
that the [Legion] has a close relationship with the [City]—i.e., that
the [Legion] is an ‘associate’ or is ‘engaged together in the same
activity.’” Mech, 806 F.3d at 1076 (quoting Partner, Oxford English
Dictionary (online ed.)). So both the City and the Legion publicly
came together to endorse the same message. Indeed, “partnership”
is an understatement. Although the Legion was publicly identified
as a co-host of the Parade, it did not financially contribute to it in
any significant amount. The City, by contrast, covered almost all
the Parade costs, including those associated with the event space,
public safety personnel, barricades, and vendors to service the Pa-
rade.
The Sons contend that the Parade’s being “sponsored with
both private and public money” is sufficient to make it private
speech and that “the City is using its position as a majority-sponsor
of the parade to regulate private speech.” But neither the Legion’s
involvement nor the involvement of private organizations as par-
ticipants in the Parade itself establish that the City did not endorse
the messages communicated by the Parade. “The fact that private
parties take part in the design and propagation of a message does
not extinguish the governmental nature of the message,” Walker,
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576 U.S. at 217, especially if, as here, the government is organizing
and funding the event through which the message is communi-
cated. Cities “typically do not” organize and fund events that con-
tain “messages with which they do not wish to be associated.” Id.
at 212 (alteration adopted) (internal quotation marks omitted). And
“because [the speech] occurs at a government-organized event” in
the form of the Parade, “we can safely assume that the organiz-
ers . . . generally would not allow . . . messages they did[ not] want
to be associated with.” Cambridge, 942 F.3d at 1233. It is obvious,
then, that observers would interpret a parade promoted, orga-
nized, and funded by the government “as conveying some message
on [its] behalf.” Walker, 576 U.S. at 212 (internal quotation marks
omitted).
C. Control
The final factor—control—strongly supports that the Pa-
rade was the City’s speech. The evidence establishes that the City
“maintains direct control over the messages conveyed” in the Pa-
rade. Id. at 213. Participation in the Parade depended on submis-
sion of an application to the City. The application expressly re-
quired applicants to describe the kinds of messages they intended
to convey at the Parade. “[F]inal approval authority” over the ap-
plication was exercised by the City based on the message the Mayor
and City Council wanted the Parade to communicate. Johanns v.
Livestock Mktg. Ass’n, 544 U.S. 550, 561 (2005); see also Mech, 806
F.3d at 1078 (holding that the control factor “strongly suggests that
the banners are government speech” because school principals
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were obliged to approve every banner before they were placed on
school fences). The Legion, by contrast, did not determine who
participated in the Parade.
All these facts establish that the control factor weighs in the
City’s favor. The City “effectively controlled the messages con-
veyed” by requiring applicants to describe the messages they in-
tended to communicate and then by “exercising final approval au-
thority over their selection” based on those descriptions. Walker,
576 U.S. at 213 (alterations adopted) (internal quotation marks
omitted). When the City exercised this control as the Parade’s or-
ganizer by excluding organizations with whose speech the City dis-
agreed, the City was speaking. See Rumsfeld v. F. for Acad. & In-
stitutional Rts., Inc., 547 U.S. 47, 64 (2006) (“[A] parade organizer’s
choice of parade contingents . . . is . . . inherently expressive.”).
To be sure, once an applicant is admitted, it may renege on
its express promise on the application form to “abide by all rules
and regulations set forth by the event organizers.” But the govern-
ment need not “control every word or aspect of speech in order for
the control factor to lean toward government speech.” Cambridge,
942 F.3d at 1235–36. If the reverse were true, any speech through
private parties would involve yielding control. The government-
speech doctrine does not require omnipotence. See id. (“[C]om-
plete control is not required.”). And, as we have repeatedly
stressed, the City was free “to express its views” by receiving “as-
sistance from private sources for the purpose of delivering a gov-
ernment-controlled message.” Summum, 555 U.S. at 468. The City
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decided which private groups to admit or exclude based on the con-
sistency of the groups’ characterizations of their intended speech
on the City’s application form with the messages the City wanted
to communicate through the Parade. And the City required that
participants agree in advance to abide by “all rules and regulations”
that the City imposed. Either exclusion or advance preconditions
would be adequate control. Because all three factors point in the
same direction, we conclude that the Parade was the City’s speech.
Matal v. Tam, 137 S. Ct. 1744 (2017), is not to the contrary.
In Matal, the Supreme Court held that the content of registered
trademarks is not government speech in part because the govern-
ment would then be “babbling prodigiously and incoherently,” ex-
pressing at once “contradictory views.” Id. at 1758. The Sons rely
heavily on this reasoning. They argue that, if the Parade were the
City’s speech and the Sons participated even without displaying the
Confederate battle flag, the City would be expressing contradictory
views by “simultaneously endors[ing] opposing sides of the same
wars, such as the Union and the Confederacy.”
There is nothing to this argument. Matal’s reasoning about
contradictory speech followed other considerations in the light of
which the Court concluded that “it is far-fetched to suggest that the
content of a registered mark is government speech.” Id. The Court
explained that the government “does not edit marks submitted for
registration”; “an examiner may not reject a mark based on the
viewpoint that it appears to express” (save the exception at issue in
that case); “an examiner does not inquire whether any viewpoint
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conveyed by a mark is consistent with Government policy”; if the
mark meets viewpoint-neutral requirements, “registration is man-
datory”; and the placement of the mark on the principal register is
ordinarily not reviewed by any official higher than the examiner.
Id. The opposite facts exist in this case: The City asked for a detailed
description of the intended speech so that it could “edit” the
speech. The City exercised the discretion to reject any organization
based on whether the viewpoint it intended to express was con-
sistent with the City’s views. And the ultimate decision was made
by the highest City authorities. This appeal is not Matal.
In any event, “[e]ven if we agreed that the protection of the
government-speech doctrine must be forfeited whenever there is
inconsistency in the message, we would nonetheless accord the
protection here” because the City’s message was consistent. Jo-
hanns, 544 U.S. at 561 n.5. The fallacy in the Sons’ argument is the
implicit assumption that all views associated with all participants
would be the City’s speech if the Parade were the City’s speech.
But that assumption is false. “By accepting” a float, the City “does
not necessarily endorse the specific meaning that any particular do-
nor sees in” it. Summum, 555 U.S. at 476–77.
Consider an example on which the Sons rely: The City al-
lowed the “Democrat Party of Fulton County [to] participate.” In
the light of the Parade’s central message—honoring veterans—ob-
servers could reasonably infer from their participation not that the
City endorsed everything for which the Democrats stand, but that
the City has brought together diverse “private parties” to
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“propagat[e]” one common message with which all participating
parties agreed. Walker, 576 U.S. at 217. And one could reasonably
infer that there was nothing on the Democratic Party’s float that
the City thought was incompatible with the values it was seeking
to promote through the Parade. See Hurley, 515 U.S. at 574 (“Ra-
ther like a composer, the [organizer] selects the expressive units of
the parade from potential participants, and though the score may
not produce a particularized message, each contingent’s expression
in the [organizer’s] eyes comports with what merits celebration on
that day.”).
Far from communicating an inconsistent message, the City
sought to keep its message consistent by excluding the Confederate
battle flag. As Drinkard explained to Leake, the City’s view was that
the Confederate battle flag symbolizes oppression and slavery, and
its inclusion was inconsistent with its goal of uniting the commu-
nity. The public purpose of the Parade was to celebrate the service
of veterans who “defended the rights and freedoms enjoyed by eve-
ryone.” (Emphasis added.) The City was free to exercise its right to
exclude the Confederate battle flag from its Parade on those bases
or any others. See Walker, 576 U.S. at 206 (upholding Texas’s deci-
sion to exclude the Confederate battle flag from its license plates
based on Texas’s determination that “a significant portion of the
public associate the confederate flag with organizations advocating
expressions of hate” (internal quotation marks omitted)).
Finally, “[a]bsurd results would follow if the First Amend-
ment protected” the Sons’ right to fly the Confederate battle flag in
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18 Opinion of the Court 20-13868
the City-organized Parade. Dean, No. 19-14674, slip op. at 37. By
the Sons’ logic, anytime the government seeks to organize an event
by bringing private parties together to communicate a message the
government wants expressed, it must allow the participation of
other parties that will express the opposite message. For example,
if after ratification of the Bill of Rights the federal government
funded and organized a parade commemorating our stunning vic-
tory over Great Britain, it would have had to allow participation of
Union Jack-waving loyalists if it allowed participation of Gadsden
flag-waving patriots. The Constitution does not require such an ab-
surdity. See Summum, 555 U.S. at 480 (rejecting the proposition
that “[e]very jurisdiction that has accepted a donated war memorial
may be asked to provide equal treatment for a donated monument
questioning the cause for which the veterans fought”); see also Peo-
ple for the Ethical Treatment of Animals, Inc. v. Gittens, 414 F.3d
23, 30 (D.C. Cir. 2005) (“No one could plausibly argue that an In-
auguration Parade has to have balance, or that the losing Presiden-
tial candidate must—if he requests—be allowed to have a float of
his own.”). And with good reason: It “would lead almost inexora-
bly to” the end of government-sponsored parades, a medium of
communication governments have used from time immemorial.
Summum, 555 U.S. at 480.
The three-factor analysis establishes that, when govern-
ments organize and sponsor a parade to communicate a message,
the parade is their speech from which they may include or exclude
participants at will. “Since every participating unit affects the
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message conveyed by the . . . organizers” of a parade, neither the
government nor private parties may compel them “to alter the ex-
pressive content of their parade.” Hurley, 515 U.S. at 572–73. This
principle applies no matter whether the organizer is the govern-
ment or a private party. A government cannot compel a private
parade organizer to admit groups of whose views the private or-
ganizer disapproves. Id. at 574–75 (holding that the State could not
compel a private parade organizer to admit a gay, lesbian, and bi-
sexual advocacy group because the “parade’s organizers” had a
right to choose not “to propound a particular point of view”). And
we hold that a private organization cannot compel a government
parade organizer to admit groups of whose views the government
disapproves.
“To the [Sons of Confederate Veterans], [the Confederate
battle flag] is said to evoke the memory of their ancestors and other
soldiers who fought for the South in the Civil War.” Walker, 576
U.S. at 234 (Alito, J., dissenting). But to many others, “it symbolizes
slavery, segregation, and hatred.” Id. That sentiment is not surpris-
ing.
Southern governments began prominently displaying the
Confederate battle flag, not soon after their defeat by the United
States in 1865, but in the 1950s and 1960s “in symbolic defiance of
changing laws that threatened” state-compelled racial segregation.
Moore v. Bryant, 205 F. Supp. 3d 834, 843 (S.D. Miss. 2016). “In
early 1948, as President Truman pressed for Civil Rights legislation,
some Southern Democrats called for an anti-Truman,
USCA11 Case: 20-13868 Date Filed: 09/28/2021 Page: 20 of 20
20 Opinion of the Court 20-13868
segregationist electoral bloc in the South.” Chris Springer, The
Troubled Resurgence of the Confederate Flag, 43 HIST. TODAY, no.
6, June 1993, at 7, 8. Segregationist Democrats “appropriated the
Confederate flag as their symbol” and “[f]or their political and ra-
cial revolt” against federal civil-rights legislation, “they mustered
behind them all the iconography of the Confederacy.” Id. “In 1956,
Georgia redesigned its flag to include the Confederate battle em-
blem,” and both South Carolina and Alabama raised the flag at
their state capitols in 1962 and 1963, respectively, at the height of
their attempts to preserve the institution of racial segregation.
Moore, 205 F. Supp. at 843–44. As a result, “the Dixiecrat campaign
greatly strengthened the links between the flag and white suprem-
acism.” Springer, supra, at 8.
The City recognized the obvious fact that the flag “has be-
come a divisive symbol that a large portion of our citizens see as
symbolizing oppression and slavery.” Although Southern govern-
ments once flew the flag to promote those unjust causes, they can-
not now be compelled to do so by private parties when they have
made the decision to promote just causes instead. We hold that the
Parade was the City’s speech. It follows that the Sons of Confeder-
ate Veterans “cannot force [the City] to include a Confederate bat-
tle flag” in the veterans parades it funds and organizes. Walker, 576
U.S. at 219.
IV. CONCLUSION
We AFFIRM the judgment in favor of the City.