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On The Front Lines

Rutherford Institute Files First Amendment Lawsuit Over Civil War Heritage Group’s Right to Fly Confederate Flag

LEXINGTON, Va. — The Rutherford Institute has come to the defense of a civil war heritage society that was prohibited from flying the Confederate flag despite the fact that other organizations were allowed to fly their flags. In filing a First Amendment lawsuit against the City of Lexington, Virginia, Institute attorneys allege that city officials exhibited hostility toward the Confederate flag and engaged in unconstitutional viewpoint discrimination against the Sons of Confederate Veterans (SCV) when they adopted an ordinance limiting use of the flag standards to the display of national, state and city flags. The complaint also alleges that the ordinance violates a 1993 federal court injunction which protects the SCV’s right to display the Confederate flag within the City of Lexington.

The Rutherford Institute’s complaint in Sons of Confederate Veterans v. Lexington, which was filed in the U.S. District Court for the Western District of Virginia, is available here.

“The First Amendment was penned by the Framers of the Constitution to protect our ideas and speech, both the popular and the unpopular,” stated John W. Whitehead, president of The Rutherford Institute. “The issue here is not whether the Confederate flag should be displayed but whether we, as Americans, remain committed to the idea of free speech. If we allow the censoring of something simply because it may be controversial, we open the door for the government to discard anything deemed disturbing or offensive.”

The Sons of Confederate Veterans (SCV) is a nonpolitical fraternal organization that seeks to recognize and preserve the heritage and history of military personnel who fought for the Confederate States of America during the Civil War. In early 2010, the SCV began planning and organizing a parade to be held in January 2011, in Lexington, Va., a city with rich ties to Confederate history. For example, Lexington was the home of Gen. Thomas “Stonewall” Jackson, who is also buried in Stonewall Jackson Memorial Cemetery. Gen. Robert E. Lee also is buried in Lexington at the chapel of Washington & Lee University, where Gen. Lee served as president from 1865 until his death in 1870. Lee-Jackson Day has also been designated as an annual holiday every January in the Commonwealth of Virginia.

As part of its preparations for the parade, the SCV requested permission to temporarily display the Confederate flag from street standards owned by the city.  In years past, other groups, such as college fraternities, had been granted permission to fly their flags from the standards for special events. Although the SCV’s request created some controversy, city officials granted them permission to temporarily display the Confederate flag during the January 2011 event. However, at a March 2011 meeting to discuss the policy governing use of the flag standards, several persons expressed opposition to the Confederate flag display. Subsequently, in September 2011, the City adopted an ordinance providing that only the national flag of the United States, the flag of the Commonwealth of Virginia and the City flag of Lexington may be flown from the standards on designated holidays.

In filing the First Amendment lawsuit, Institute attorneys allege that the City not only violated the 1993 injunction assuring the SCV of the right to display the Confederate flag but also discriminated against the SCV in violation of their right to free speech and equal protection under the law. Thomas E. Strelka of Roanoke, Virginia, assisted The Rutherford Institute in its defense of the SCV.

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