Judge To Hear Confederate Flag Suit
By Ed Ballam
GREENBELT, Md.

A lawsuit seeking to allow a Confederate battle flag to fly at Point Lookout National Cemetery was expected to be heard by a federal judge in U.S. District Court in Maryland on Nov. 27.

The suit was filed by Patrick J. Griffin III of Darnestown, Md., against the Department of Veterans Affairs (VA) and the National Cemetery Administration (NCA). Griffin alleges the government has abridged his constitutional rights to free speech by severely restricting the display of the battle flag at the cemetery where Confederate prisoners of war who died at the Point Lookout Prisoner of War Camp are buried in a mass grave.

The cemetery was created by Maryland in 1870 when the remains of the Confederates who died at the P.O.W. camp were moved from individual graves to "a better location" in a mass grave about a mile inland. Maryland asked that the federal government take control of the cemetery in 1910 and it became a national cemetery. The government erected an 85-foot monument at the site and placed the names of 3,384 Confederates known buried in the mass grave on bronze tablets.

Griffin, who is the immediate past international commander of the Sons of Confederate Veterans (SCV), has an ancestor who was once held at Point Lookout. He actually had ancestors on both sides in the war -- those on the Confederate side did not have slaves, while his relatives to the north did keep slaves.

In response to the suit, the U.S. Department of Justice, which is defending the VA and the NCA, said the government cannot be forced to engage in free speech and that the cemetery is not a public forum for exercising free speech.

Moreover, the government has a "compelling interest in not conveying the message of racial intolerance and divisiveness that some persons reasonably perceive in the Confederate battle flag."

"I've decided I don't want to take it any more," says Griffin, who continues to be an active member of the SCV and serves on many executive-level boards of the organization. "The veterans who are buried there deserve more respect than what the VA is willing to give them."

According to Griffin's lawyer, Steven Campen of Frederick, Md., the suit specifically seeks to enjoin the VA and its agents from interfering with Griffin's daily display of a full-sized, historically accurate Confederate battle flag at the Point Lookout Confederate Cemetery.

In his lawsuit, Griffin said that he and the SCV or the Point Lookout Prisoner of War Descendents Organization are willing to erect a separate flag pole and maintain it at their expense, and raise and lower the flag on a daily basis if necessary.

The government response was that it doesn't matter if private individuals are completely responsible for the expense and maintenance of flying a flag at Point Lookout because it would still be on federal property and, therefore, would give the impression it was sanctioned and funded by the government. "He does not, however, represent that he or anyone else would remain with the flag at all times even assuming their presence would make the display a private one. …A Confederate flag flying at Point Lookout would be on federal property, under federal auspices, in circumstances indicating to observers that the flag's display is sponsored by the United States."

In April 1998, officials at the Baltimore National Cemetery who oversee the Point Lookout site removed the Confederate flag from display at the Confederate cemetery. It had previously flown, without dispute, every day for at least five years previously. The flag was subordinate to the United States flag on the same pole and was illuminated at night.

An apparently well-intended person questioned why the U.S. flag was flying at an all-Confederate cemetery which prompted a review of the rules. (August 1998 Civil War News) The federal laws governing the display of the Confederate battle flag, which Griffin is challenging, only permit the display of the Confederate banner on Memorial Day and on Confederate Memorial Day.

"I find that offensive," Griffin said in a recent telephone interview. "We're really limited to one day a year, Memorial Day, because Maryland doesn't observe Confederate Memorial Day.

He said, "The way it is now, if I go there with a little Confederate battle flag in my prayer book and offer a prayer for my ancestors and all the others who served, I can be arrested fined and incarcerated. That is patently unfair and I find it absolutely absurd."

Griffin promises to be "no shrinking violet" on the matter and said he will fight the government's rules until they are changed and he is free to fly the Confederate battle flag at Point Lookout.

Attorney Campen said that the lawsuit is squarely based on First Amendment Constitutional rights to free speech.

"A free society should not attempt to regulate speech in the name of political correctness," he said.

Attorney Scott Simpson who works for the U.S. Department of Justice and is working on Griffin's lawsuit, said he could not speak about the case and referred questions to the department's public affairs office.

Charles Miller, a representative of the Department of Justice's public affairs department, said all the government has to say about the case is outlined in its court response to the lawsuit which was filed on Nov. 3 in U.S. District Court.

The 45-page document outlines several objections to Griffin's lawsuit but seems to boil down to two key points. First, the Constitution does not give Griffin the constitutional right to force the government to fly the flag; and secondly, the government has an interest in not displaying a divisive symbol.

"Under these rules, [Griffin's] motion for preliminary injunction in this case should be denied," the Department of Justice's response stated. "[Griffin] cannot succeed on his claims that the Constitution requires daily display of the Confederate battle flag at Point Lookout: First, such a display would be a display by the government, for which the First Amendment confers no right. And second, the interests of the United States amply justify refusing to display the Confederate battle flag at Point Lookout -- which is, at most, a non-public forum -- given the message of racial intolerance and divisiveness that many persons reasonably perceive in this flag."

Griffin's suit cited "selective discrimination" and said, "the VA has invoked regulations that subject constitutionally protected speech to the unbridled discretion of VA officials. It has also cited VA flag policies that impose egregious content and viewpoint-based restrictions on the display of Confederate flags."

Griffin seeks "to vindicate his right to display a Confederate flag at a Confederate cemetery on the same terms as the VA permits display of other non-United States flags" including the POW/MIA flag.

The suit calls the VA's flag restrictions "unreasonable in the context of the Cemetery, at which over 3,300 Confederate dead are buried and which exists for the purpose of commemorating and honoring Confederate dead."

The suit is concerned that "Unless [the VA and the NCA] are so restrained, [Griffin] and those who visit the Cemetery further are likely to be subjected to a multiplicity of civil and/or criminal actions, including actual arrest an imprisonment." Enforcement of restrictions "to prevent or limit display of the Confederate flag at the Cemetery as alleged herein will also have a chilling effect on the exercise of free speech by members of the public, including [Griffin] himself."

The Department of Justice response is that because the flag would be flying on federal property, the public would justifiably believe it was sponsored by the United States, even though it would be paid for and maintained by Griffin, or the SCV, or another private party.

"Moreover, the display of the Confederate flag at Point Lookout would join an analogous display by the United States -- The United States flag that flies at the Cemetery -- thus further suggesting federal sponsorship of the Confederate flag. Finally, the location of Point Lookout Confederate Cemetery -- some sixteen miles from a major United States military installation and less than thirty feet from a public highway leading to a state park -- would expose the flag's display to a significant number of casual passers-by."

The federal response also drew a parallel between the flag and a Christmas crèche which the Supreme Court has ruled that cannot be displayed in a prominent location in front of a municipal building because observers would perceived it as a "governmental endorsement of a religious message."

A cemetery is not a forum for the exercising of free speech in that it's not like a public street, sidewalk, or public gathering place. It is a place to honor the dead, in the government's view.

"If the South had won the Civil War, the institution of slavery would have continued within its borders," the government's response to the suit said. "Given that the Confederate battle flag symbolizes the South's attempt to leave the country and, thus, to perpetuate the slavery of black persons, it should not be surprising that the Confederate battle flag is often perceived today as a symbol of racial intolerance and divisiveness."

Griffin said that he resents the government implying that he and other members of the SCV are racists because they want to display the battle flag under which their ancestors fought and died. He acknowledged there are some segments of society that have adopted the battle flag as symbols of their hatred, but said the original meaning has been obscured by the acts of a few.

"I don't share their views, nor do my friends and associates," Griffin said of others who used the battle flag for racist purposes. "They're lumping us in to one group. They think we're all a bunch of fat-bellied rednecks, but that's just not true.

"We're fine, upstanding citizens who all pay our taxes and do a lot for the communities we live in."
Griffin said, "They think were just a bunch of good old boys and there's nothing we can do about it. Well, I'm sick and tired of being pushed around and being made to feel less of a citizen."

He said he wouldn't stop until the dead Confederates have the flag under which they fought flying over their resting place.

Although the case to go before the judge on Nov. 27 is for a preliminary injunction, Griffin's lawyer, Campen, said the federal judge could make his decision a final one because the arguments are not going to change between a preliminary injunction and a request for a final decision.
"We feel the hearing will be the whole ballgame," Campen said.
He believes the decision could have far-reaching impact on other Confederate sites owned by the government in that Griffin's lawsuit goes right to the heart of the rules governing the display of the Confederate flag. He said there may be as many as a half dozen other cemeteries that might be affected by any decision made in the Griffin lawsuit.

"We are hoping to prevail on the First Amendment issues because that's really what it is all about," Campen said.