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Lexington, VA's Stonewalling of Confederate Flag Flying OK'd

By William Peacock, Esq. on July 09, 2013 | Last updated on March 21, 2019

Don't like the message? Close the forum.

Lexington, Virginia, which will forever hold a place near-and-dear to this blogger's heart, is an idyllic small town with many, many ties to the Confederacy. After all, the great Washington and Lee University is named for, you guessed it, Robert E. Lee, who became president of the university after the Civil War.

General Stonewall Jackson's statue watches over the town's cemetery, more than a century after he loomed over the Virginia Military Institute. The Robert E. Lee highway runs straight through town, and one wouldn't be surprised to run by an odd fellow or two in a grey Confederate States of America uniform, on their way to or from a Civil War reenactment.

Yeah. It's pretty ingrained. We won't even talk about the sandwiches named after the late Southern folk heroes.

One more vestige of the Confederate past is Lee-Jackson Day, celebrated throughout Virginia, with parades, memorial services, and at least in Lexington, a Memorial Ball. In prior years, the Sons of the Confederacy would line the city's flagpoles with the infamous rebel flag, commonly (yet unofficially) known as the Confederate Flag.

Of course, the banner of a nation that fought for, among other things, slavery, and which has since been adopted by a number of white supremacist organizations, is bound to cause some controversy, especially in a town with a liberal arts college and the nation's greatest law school. (Sidebar: Author = graduate of said greatest law school.)

The city received hundreds of complaints about the flags, which is no small feat, considering Lexington is about a mile long and has, by a very unofficial count, about forty-seven people.

Their response was to ban all flags from the flagpoles, other than city, state, and federal flags. No W&L flags, no VMI flags, and no fraternity or sorority flags. And definitely no Confederate flags.

Late last week, the Fourth Circuit Court of Appeals upheld that ban, calling it "eminently reasonable" because it banned all private speech, and was therefore, content-neutral.

As for closing a public forum once open to private speech, the Fourth Circuit held that, "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.'"

And though the closing was caused, largely, by an apparent desire to silence the Confederate diehards, there is no controlling precedent that states that motive dictates constitutionality. In fact, in Hill v. Colorado, the Supreme Court stated, "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." The court had also previously upheld a picketing ordinance that was targeted at antiabortion protestors.

The state of the law is then, if you don't like the messages, close the forum to everyone. The court also notes that the Sons of Confederate Veterans are free to fly their flags in other ways, such as carrying them in parades or on private property.

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