SCV Sues Lexington Over Flag Law
By Scott C. Boyd
(February/March 2012 Civil War News)
LEXINGTON, Va. – The Virginia Division of the Sons of Confederate Veterans (SCV) filed a lawsuit in federal court on Jan. 12 against the City of Lexington, Va., all seven of its elected officials and one appointed official, over the city’s flag ordinance.
Those officials are the mayor, six city council members and the appointed city manager. All are being sued strictly in their official capacity.
The city, home to Virginia Military Institute, where Stonewall Jackson taught before the war, and Washington and Lee University, where Robert E. Lee served as president after the war, passed the controversial ordinance on Sept. 1, 2011 (see Oct. 2011 CWN).
The ordinance bans the display of flags other than the city, state and U.S. flags from standards on city lampposts downtown. It has the effect of preventing the display of Confederate flags on those same lampposts.
The SCV alleged that that was the real purpose of the ordinance, although the term “Confederate” does not appear in its wording. However, it also had the effect of banning VMI and Washington and Lee flags often displayed for sporting events.
The impetus for the ordinance was a petition presented to the city council on March 17, 2011, signed by several hundred people opposing the display of Confederate flags in the city by the SCV to celebrate Lee-Jackson Day, a January state holiday in Virginia.
The tradition of hanging Confederate flags from city lampposts downtown on Lee-Jackson Day ended this year because of the ordinance.
For the recent Lee-Jackson Day parade in Lexington, the SCV had members standing by downtown lampposts holding Confederate flags, since they could not be hung on the posts.
After warning the city council at its Oct. 6 and Nov. 17, 2011, meetings that the SCV was preparing a lawsuit over the matter, local SCV Stonewall Brigade Camp 1296 Commander Brandon Dorsey held a press conference outside the U.S. District Court for the Western District of Virginia in Roanoke on Jan. 12 to announce the filing of the suit.
Dorsey was accompanied by lawyers Thomas E. Strelka and Correy Diviney of Strickland, Diviney and Strelka of Roanoke. They are receiving pro bono support from The Rutherford Institute of Charlottesville, Va., a civil liberties and human rights organization.
The lawsuit has two counts. The first alleges civil contempt by the city and the eight officials by violating an existing court order concerning the display of the Confederate flag stemming from a 1993 case the SCV won against the city.
That court order stated in part that the city may not “deny or abridge the right of the Plaintiff organization and its members … to … wear, carry, display or show, at any government-sponsored or government-controlled event or place … the Confederate flag….”
The SCV claims that the 2011 flag ordinance is in “direct conflict” with the 1993 court order and was passed “as a proximate result of the Plaintiff organization’s repeated requests over the years to display … the Confederate flag within the city and in an effort to prevent them from requesting and/or exercising such privileges.”
The second count alleges the city and its officials violated the Plaintiff’s rights under the First Amendment to the U.S. Constitution.
The SCV claims the flag ordinance was adopted because of the city’s “disapproval of the content and/or viewpoint expressed by the Plaintiff and the flags the Plaintiff flew from city flag standards in January of 2011.”
This count asserts the flag ordinance “constituted discrimination against the Plaintiff and the expression of the Plaintiff on the basis of content and/or viewpoint.”
The remedies sought by the lawsuit are: “a finding of civil contempt on the part of the Defendants”; “a judgment against the Defendants and for equitable relief”; attorneys’ fees; “compensatory, liquidated and punitive damages”; and “such other and further relief as may be just and equitable.”
Judge Samuel G. Wilson, who ruled on the 1993 case, will hear the 2012 case.
As Civil War News goes to press, the City of Lexington has not released an official statement about the lawsuit.
Lexington City Manager Jon Ellestad was quoted by WSET-TV as saying the city anticipated the lawsuit.
Mayor Mimi Elrod told WDBJ-TV she believes the city’s case is “rock solid.”
Lexington City Attorney Lawrence Mann declined to comment, saying, “in a suit like this, the city’s insurance coverage kicks in, and they retain attorneys to represent the city.”
Those outside attorneys, Jeremy Carroll and Paul Beers, of Glenn, Feldmann, Darby and Goodlatte in Roanoke, did not return calls seeking comment.
Mann has previously cited an article by Ken Paulson, president of the First Amendment Center at Vanderbilt University and the Newseum, which claims the Lexington flag ordinance “almost certainly passes constitutional muster.”
According to Paulson:, “The key is that the city did not target Confederate flags, although clearly eliminating those was the driving force in its decision. Instead, it abolished all flags from city-owned poles beyond the official flags of specific government entities. It did not favor some non-government causes or ideas over others, which would have made the ordinance constitutionally suspect.”
The city has until April 23 to respond in court.
The SCV lawsuit can be read at www.rutherford.org/files_images/general/01_12_2012_Complaint_SCV.pdf
The 1993 court order is at www.stonewallbrigade.webs.com/SCV%20v%20Lexington%20-%20Decree.pdf