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Mississippi Can Keep Its Flag, 5th Cir. Rules

By William Vogeler, Esq. on April 05, 2017 | Last updated on March 21, 2019

A federal appeals court rejected a black man's attempt to bring down Mississippi's flag, which features a Confederate battle ensign and enshrines the state's slave history.

Carlos Moore, an attorney, claimed the Confederate emblem violated his rights to Equal Protection. But the U.S. Fifth Circuit Court of Appeal said he did not have standing to sue, even though he may have felt the stigma from the vestige of slavery in Moore v. Governor Dewey Phillip Bryant.

"Plaintiff's exposure to the Mississippi flag in courtrooms where he practices and his alleged physical injuries resulting from that exposure demonstrate that he strongly feels the stigmatic harm flowing from the flag," Judge Stephen Higginson wrote for the unanimous court.

However, the court explained, stigmatic injury is not injury-in-fact for standing purposes.

Stigma of Slavery

The appeals court affirmed a ruling last year by a federal judge, who dismissed the case for the same reasons. U.S. District Judge Carlton Reeves said Moore showed no "cognizable legal injury."

The judge also took the opportunity to refute protesters, who said outside the courtroom that Mississippi's secession from the union had nothing to do with slavery.

Reeves quoted the state's secession declaration, which said: "Our position is thoroughly identified with the institution of slavery -- the greatest material interest of the world."

"To put it plainly," Reeves added, "Mississippi was so devoted to the subjugation of African-Americans that it sought to form a new nation predicated upon white supremacy."

"Hate Speech"

Moore claimed in his lawsuit that the flag was "discriminatory and racist in nature." He called it "hate speech," causing him emotional injury and inciting people to commits acts of racial violence.

The New Orleans based appeals court, however, said he had not showed an actual injury from the flag or that he had suffered discrimination because of it.

"That plaintiff alleges that he personally and deeply feels the impact of Mississippi's state flag, however sincere those allegations are, is irrelevant...unless plaintiff alleges discriminatory treatment," the court said.

Voters preserved the Confederate flag by referendum in 2001, but all the state's public universities have stopped flying it.

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