City-Organized Veterans Parade Can Exclude Confederate Flags

So holds the Eleventh Circuit today in Leake v. Drinkard, in an opinion by Judge William Pryor joined by Judge Barbara Lagoa and District Judge Harvey Schlesinger:

We hold that the [a pro-American veterans parade funded and organized by the City of Alpharetta, Georgia] was the City's speech. It follows that the Sons of Confederate Veterans "cannot force [the City] to include a Confederate battle flag" in the veterans parades it funds and organizes.

Surely correct, I think, just as the parade wouldn't have to include a Nazi flag or a Soviet flag or for that matter a British, Mexican, or Spanish flag—or for that matter even flags of neutral countries (or banners promoting pacifism), if the city decides that those flags don't fit the city's message. Likewise, if the City wants to put on a pro-police parade, it needn't include anti-police banners. Cf. Pleasant Grove City v. Summum (2009) (holding that a city may pick and choose what monuments to allow in its parks).

Comments

[Nisiiko]

Surely correct? Why should a city be allowed to use taxpayer money to propagate a certain viewpoint?

[TwelveInchPianist]

That's how government speech works.

The government gets to take your money to propagate its viewpoint.

If you disagree with their viewpoint, you can spend your money to propagate your own viewpoint.

If you begin to convince too many people, the government can take more of your money to do more propagation of its own viewpoint.

This continues until you run out of money.

[darkknight9]

Brill. Altogether well done. 🙂

[JasonT20]

If you disagree with their viewpoint, you can spend your money to propagate your own viewpoint.

You can also convince enough voters to vote for different people to run the government so that it would express a different viewpoint that you agree with instead. Amazing how that works.

[Darwinnie]

That’s why dems hate Citizens United.

[Martinned]

Money talks...

[Ben of Houston]

Well, think of it this way. You can't fly a banner for the United Federation of Planets, the Galactic Republic, Gondor, or Equestria either. It's just not relevant.

If you want to celebrate the veterans of a foreign country (even ignoring the fact that it was traitorous), then you can do so on your time and with your own money. The city is celebrating the veterans of the United States.

[Dan Schiavetta]

It’s actually worse than that. Flying the Confederate flag celebrates treason against the United States. It’s not just a different country — it’s opposition to this one.

[ah....Clem]

"Flying the Confederate flag celebrates treason against the United States."

Unfortunately, while true, it's not widely understood that way.

It should be.

[Flight-ER-Doc]

Not at all: Both sides fighting were Americans

[Absaroka]

????

Tim McVeigh, Eric Rudolph, Bill Ayers, Bernardine Dohrn, etc, etc were all Americans. That doesn't excuse what they did.

[Flight-ER-Doc]

No. But they were Americans.

[ah....Clem]

Treason: the crime of betraying one's country, especially by attempting to kill the sovereign or overthrow the government.

So, yeah the confederates were American. You'd have to be an American to to commit treason against America, by definition.

Is there a point you're trying to make, or do you just not understand the meanings of simple words?

[Richard Gadsden]

Yes, one side were loyal to the government of the United States, the other were traitors.

Just as both sides in the American Revolution were British and one was loyal to the government of Britain and the other were traitors.

The fact that the oath-breaking traitors won in the second case and lost in the first is why one set are celebrated as the Founding Fathers of a new nation and the other are condemned as traitors to a continuing one.

[Krayt]

"Treason never prospers. What's the reason? If treason prospers, none dare call it treason."

Good riddance to the Tyrant King as well as southern slavery.

[shawn_dude]

If the Confederacy had won, they'd have been a different country and, again, their flag would be improper to fly in an American veterans day parade because they would have ceased to be American veterans.

Losing their bid to continue the crime of slavery as an independent nation shouldn't earn them any consolation prizes nor any respect.

[AmosArch]

Suddenly leftists are all flag waving chest beating patriots. I guess admiring and collaborating with modern communist countries is somehow is more patriotic than admiring a long dead political entity. I guess openly saying you hate America all day is more patriotic than protesting a statue teardown. If theres anything you guys excel at its inverting reality.

[Sarcastr0]

2 things can be true:
-Jingoistic flag-humping is cringey, and ignoring America's mistakes in the past is not patriotic, it's propagandistic.

-Waving the Confederate flag is a shitty and unpatriotic thing to do.

[DWB]

Sarc and his lefty allies only only like America in that they can use its government to punish people he dislikes

[Nisiiko]

It's only treason if you consider the United States to be what resulted from the Civil War.

[MoreCurious]

100% wrong. It was treason because the secessionists took up arms against the United States as it existed on April 12, 1861.

[Brett Bellmore]

It's not treason, because they seceded first, and only Americans can commit treason against America.

And before you deny that they'd actually seceded, remember that the remaining portion of the US undertook many actions which would only have been constitutional if they were all the states, because otherwise Congress would have lacked a quorum to do business for a couple years there.

[JasonT20]

It’s not treason, because they seceded first, and only Americans can commit treason against America.

That's begging the question. You did not establish that secession was legal at the time they seceded.

And before you deny that they’d actually seceded, remember that the remaining portion of the US undertook many actions which would only have been constitutional if they were all the states, because otherwise Congress would have lacked a quorum to do business for a couple years there.

If the secessionist states were in a state of rebellion rather than no longer part of the U.S., and did not send representatives to Congress at all, then using that fact to deny Congress a quorum to do legitimate business is putting the Union in a catch-22.

[Brett Bellmore]

The rules are the rules, regardless of whether they get in your way. Congress can refuse to seat members, but if they refuse to seat enough that they lack a quorum, they can't do business anymore.

The Union had it both ways: They treated the seceding states as part of the US where it was helpful, and as having actually left the US where that would be helpful. There was no consistency at all, just whatever they thought helpful at the moment.

Basically the Constitution was suspended for years, and they just did whatever they wanted.

In a good cause? Maybe towards the end. No question the South seceded in a bad cause, from our perspective, if not their own.

But do good motives make the illegal, legal?

[David Nieporent]

You're mistaken as always; the constitution defines a quorum as a majority of each house's members. Congress didn't refuse to seat southern state representatives; rather, the southern states' members resigned and those states refused to appoint new ones. They were thus irrelevant to the quorum calculation.

[Seamus]

Congress didn’t refuse to seat southern state representatives; rather, the southern states’ members resigned and those states refused to appoint new ones.

Up to a point, Lord Copper. In the case of Virginia, its representatives resigned (or were expelled), but a group of Virginia Unionists met in Wheeling, calling themselves a convention of the people of Virginia, declared Virginia's Ordinance of Secession to be illegal and void, and formed a "Restored Government of Virginia." The federal government recognized the Restored Government as the legal government of Virginia, and in particular recognized the authority of the Restored Government to consent to the creation of the State of West Virginia out of Virginia's territory. Further, the Restored Government did in fact "appoint new [representatives," and Congress seated those representatives (including the senators elected by the General Assembly of the Restored Government).

Until 1865, that is. The Restored Government moved from Alexandria to Richmond after Appomattox and attempted to govern as the true government of Virginia (just as the federal government had recognized it to be up to that point). But Congress now refused to seat representatives and senators sent under authority of the Restored Government (now governing the whole state). One of those who was denied a seat was John C. Underwood, elected to the U.S. Senate by the General Assembly of the Restored Government, even though Underwood was a staunch Unionist (who later presided over the convention that drafted Virginia's Reconstruction constitution).

[bernard11]

Virginia seceded. Robert E. didn't. Not being a state, he couldn't have.

What he did was violate his oath to the US and then wage war against it.

Besides, just saying some magic words doesn't change things.

[Gandydancer]

Just because the North won the War of Northern Aggression Against the Constitution (including the 10th Amendment right to secede) it doesn't mean that the CSA side was the traitorous one.

That said, if the city has the right to promote patriotism for the current country (and I can't see any good reason to think that is illegal) I don't see why how it does so should be unduly monitored.
A different city might include Confederate flags, however.

[David Nieporent]

1) There was (and is) no "10th Amendment right to secede."

2) There was no "North." There was the United States, and traitors.

3) The traitors attacked the United States. The U.S. was defending itself. That's the opposite of aggression.

4) The CSA side was definitionally the traitorous one; it's right there in the Constitution itself: "Treason against the United States, shall consist only in levying War against them."

[Brett Bellmore]

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Unless you can point to somewhere that the Constitution prohibits secession, or gives Congress that power, per the 10th amendment it absolutely IS a state power.

[Dan Schiavetta]

If a state has the right to secede, the secessions of 1860 - 1861 were not a true test of that question.

[Brett Bellmore]

On what basis? Because they had a bad reason for exercising the power? Or because it wasn't by popular referendum?

Nothing in the Constitution requires state powers to be exercised in a good cause, or by popular referendum, except that Article V permits Congress to specify the mode of ratification for an amendment.

[Krayt]

Hey! Let's not give short shrift to good old fashioned conquering of evil, seceding governments!

[Brett Bellmore]

I've stated before that they could have let them secede, reorganized the Union on the basis of the remaining states, and then treated the Confederacy as a hostile state on their border, and invaded them.

The net result would have been the same, without the theatrics and constitutional violations. Just, "Yes, you're not part of the US anymore. And we can't abide a slave nation next door, we're going to conquer you and reform you."

But they just couldn't admit that a state could secede.

[Dan Schiavetta]

By saying that the Confederacy was wrong, that states don't have the right to secede, we are accepting the premise that black men weren't people.

[David Nieporent]

Unless you can point to somewhere that the Constitution prohibits secession, or gives Congress that power, per the 10th amendment it absolutely IS a state power.

I can, and have done so, on numerous occasions.

Start with the most basic: it's not controversial that the Constitution was meant to strengthen the federal government. To form a "more perfect union," in fact. And yet what it replaced was a "perpetual" union. Not a mere alliance, but a union. And getting past the preamble, there are several provisions of the constitution that make secession illegal:

1) Congress has the power to "call[] forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."
2) Congress also has the power to "provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States,"
3) The president is the CinC of the Militia of the several States.
4) The Constitution is the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
5) the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.
6) The constitution requires the federal government to guarantee a republican form of government in each state. (That would be a pretty empty requirement if any orange person could seize control of a state house, declare himself emperor for life, and declare his state to be independent of the U.S.)

Your too-clever-by-half-argument is that they can avoid treason by making it a two step process, first seceding and then attacking. But it's the first step that's not permitted. They can't vote to secede in the first place because they took an oath. And any act by a state to secede would be void ab initio because the constitution is the supreme law of the land and supersedes such an act.

[M L]

Perpetual merely meant of indefinite duration. The same language is even used today in Articles of Incorporation for corporations and formative documents for LLCs, and it means it continues until dissolved. Quoting from an article on the subject, "As John Remington Graham, former law professor, experienced trial lawyer, and specialist in British, American, and Canadian constitutional law and history, wrote in his work Blood Money: “The Union is perpetual, as a corporation can be perpetual, which means only that it is not limited by a term of years, and so will last forever unless lawfully dissolved.” He goes on to say that under the “more perfect” Union created by the new Constitution, “[n]o longer may secession be effected by legislative act of a State as under the Articles of Confederation. Under the intended meaning of the United States Constitution, only the people of a State in convention may effect withdrawal from the Union, which, consequently, is more perfect.”"

Obviously that's what perpetual meant, since nobody doubted that States could secede under the Articles of Confederation.

The Constitution itself was a secession document. Did you know that? It was a secession from the AoC. Article VII reads, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” They had reason to believe less than all of the States would ratify, and in such case, the 9 ratifying states would secede from the Articles. After Rhode Island initially rejected ratification, subsequent states chose to ratify and secede and form a new Union that looked like it would not include RI and any other states that so chose.

[David Nieporent]

Well, if the anti-fluoridation Sandy Hook and Boston Marathon Truther¹ John Remington Graham says something about secession in his book about how the Jews caused the civil war, "obviously" that must be what perpetual meant. Of course, Salmon P. Chase saw it a bit differently:

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to "be perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

…it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

¹I didn't even know the latter was a thing, but apparently in addition to thinking nobody was shot in Sandy Hook, he also believes that there was no bombing at the Boston Marathon.

[JasonT20]

All of that is well stated, but it is even more than that, to me. The former colonies came together to form a new nation. They agreed, at that time, to become one sovereign nation. At that point, the now sovereign nation cannot be divided without its own consent. We have seen some countries in the post-Soviet era voluntarily and peacefully break up (including the Soviet Union itself). But to say that part of a sovereign nation can declare itself separate from the whole unilaterally is contrary to the nature of it being a sovereign nation. Even the American Revolution itself was not a valid legal exercise. The Declaration was wonderful in its principles of fundamental rights and ideals, but it was not something with a basis in any law or tradition. It was simply asserted, by itself, to be correct. It only became "legal" once England acknowledged our independence with the Treaty of Paris.

So the same is true of secession. States have no power to secede from the United States, because they are not sovereign nations. Neither the Articles of Confederation nor Constitution were a treaty between nations, but foundational documents for a single nation. There does not need to be something in there specifically forbidding secession, since that is antithetical to there being a single country. Even though there is the "dual sovereign" doctrine used to get around Double Jeopardy in some cases, the states are not truly separately sovereign in the same sense that a nation is sovereign. (Dual sovereignty is really an oxymoron, in my opinion.) A sovereign nation is completely independent in governing its own affairs. A sovereign nation can even leave a treaty it has previously agreed to unilaterally. These things are clearly not true of states, which can't even make treaties on their own.

[M L]

Lmao. Well that's some unfortunate background, if true, but the content of the quote makes sense.

Salmon P. Chase was Lincoln's wartime Treasury Secretary with an obvious agenda and axe to grind, looking for an opportunity to make whatever stretch of an argument he could to deride the idea of secession. The fact remains, "perpetual" is used today in Articles of Incorporation and it means indefinite duration, i.e. forever until dissolved or otherwise terminated. There's simply no case to be made that the word "perpetual" meant that you weren't allowed to leave -- and, indeed, just a few years later, the States did just that and seceded from this "perpetual" confederation in an instrument of secession known as the Constitution.

[David Nieporent]

All of that is well stated, but it is even more than that, to me. The former colonies came together to form a new nation. They agreed, at that time, to become one sovereign nation. At that point, the now sovereign nation cannot be divided without its own consent.

Right. But the thing is that even under the flawed contractual conceptual model of the U.S., their arguments don't work. Even if the country were just a collection of individual states that had reached an agreement to work together, that does not mean that they were free to leave; the notion "they voluntarily joined so they can voluntarily leave" is wrong. (That's setting aside that most states didn't voluntarily join. They were part of the U.S. by conquest.) When one enters into a contract, one must of course do so voluntarily — but having done so, one cannot just unilaterally decide to abrogate the contract. The parties to the contract can agree to dissolve it, but one party merely refusing to abide by it is called a breach.

The southern states could have tried negotiating an exit from the U.S., and if they convinced the other states to let them go, it wouldn't have been treason. What made it treason was that they tried to dissolve the union without the consent of the other members.

[M L]

"When one enters into a contract, one must of course do so voluntarily — but having done so, one cannot just unilaterally decide to abrogate the contract. "

True. Termination or withdrawal has to be predicated on a breach or anticipatory repudiation of some sort.

Yet, as I've explained, States did move to ratify the Constitution and secede from the Articles of Confederation, with no such predication. Apparently they figured that if 9 out of 13 parties to the contract agreed, that was good enough. Sounds sort of like a condominium association.

[M L]

The Constitution defines treason as follows: “Treason against the United States, shall consist only in levying war against them.."

Note that secession is conspicuously not listed as a treasonous activity. Nor is secession prohibited by Article I Section 10 or any other provision of the Constitution. Thus, it is a power not "prohibited by it to the States" and "reserved to the States respectively, or to the people" in the words of the 10th amendment. Clear cut.

The idea that secession would be prevented by the terms of the Constitution or the prevailing understanding at the time is frankly absurd. New York and Virginia even thought to expressly condition their ratification of the Constitution on the right to secede, describing such in their ratification actions. Each State has the same right. More reasons are detailed in, "Was Secession Treason?" By Earl Starbuck, September 18, 2020, which can be found at a domain which appears to be blacklisted from linking on this site (?!!)

If secession were not permitted and the Confederate states remained a part of the Union, then it was Lincoln and the North who committed treason by the text in levying war against them. Self-defense (by the South) should hardly be considered treason.

[bernard11]

The Constitution defines treason as follows: “Treason against the United States, shall consist only in levying war against them..”

Which is exactly what the Confederates did. That the states they lived in had seceded doesn't negate that.

In fact, I don't quite see the relevance of that at all.

[David Nieporent]

The Constitution defines treason as follows: “Treason against the United States, shall consist only in levying war against them..”

Note that secession is conspicuously not listed as a treasonous activity.

Except for the part about "levying war against them."

[M L]

Except that secession is not an act of war or the levying of war. It can be peaceful, like divorce.

[David Nieporent]

Hypothetically, perhaps. But that doesn’t apply to the southern traitors, who attacked the U.S. They seized U.S. forts by force, fired on the Star of the West, and then fired on Fort Sumter.

[David Nieporent]

New York and Virginia even thought to expressly condition their ratification of the Constitution on the right to secede, describing such in their ratification actions.

They did not do any such thing. Setting aside that there were not in fact any "conditions" on ratification, Earl Starbuck, whoever he is, does not understand the difference the founders understood between the natural right of revolution and the legal right of secession. Virginia and New York echoed the Declaration of Independence's argument that "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it." But the Declaration of Independence was not making a technical argument that the colonies had a legal right to secede from Great Britain; it was making a philosophical argument that "the laws of Nature and Nature's God" gave them the natural human right to overthrow a despotic government.

If secession were not permitted and the Confederate states remained a part of the Union, then it was Lincoln and the North who committed treason by the text in levying war against them. Self-defense (by the South) should hardly be considered treason.

Nice try at IKYABWAI, but there was no "self-defense"; the traitors attacked the U.S. (not "the North"), which was defending itself. Lincoln and the U.S. did not levy war against the U.S.; they acted to suppress insurrection as the Constitution expressly empowered them to do.

[M L]

Virginia's ratification: “…the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will…”

New York: “…the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness…”

Rhode Island: “…every other power, jurisdiction, and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State governments to whom they may have granted the same…”

[not guilty]

The Confederate cause was treason in service of human chattel slavery. Grow up and admit it.

[Brett Bellmore]

It was non-treason in service of human chattel slavery. How is this complicated?

[Davedave]

It isn't complicated. You're just wrong. It was treason. Davis claimed a nonsense interpretation of the 10th amendment. It doesn't 3ven make sense on its face. Joining the US was a state power; leaving it was not.

There is zero debate here. Secession was treason, end of story.

[Brett Bellmore]

It's funny, then, that there was such a debate about it at the time.

[Noscitur a sociis]

There's a pretty heated debate right now about whether the 14th amendment protects the right to an abortion. Somehow I doubt that you think the existence of a lot of people who very strongly disagree with you makes their construction reasonable.

[Brett Bellmore]

I'm seriously objecting to the usual practice of conflating denial of the "treason" part of that formula with denial of the "in service of human chattel slavery" part.

I think the Southern states did something different from treason, and arguably something they had a constitutional right to do, but they did it for about the worst possible motive.

[grb]

Brett Bellmore : "something they had a constitutional right to do"

Two Points :

(1) Obviously there's no constitutional process for secession, but did the southern states even try and formulate one? Did they ever propose one? Did they make even the slightest attempt? Nope; they just rebelled, seizing federal assets and firing on federal troops & ships. If Southerners believed their actions were by law (vs treason), you would think they would have sought legal (vs treasonous) means.

(2) Separating secession from slavery so the former is unsullied by the latter is so, so, so, very Lost Cause. As a Southern I can tell you we started doing that almost immediately after Appomattox

[Absaroka]

"Did they ever propose one? Did they make even the slightest attempt?"

Several formally seceded, starting in Dec 1860. The CSA was formed in Feb 1861. The Ft Sumter battle wasn't until Apr 1861. One can quibble whether a formal vote to secede is the right process, but it's not nothing.

IMHO, it was indeterminant whether secession was legal. If the constitution said 'Once ratified, no state may secede' or 'Once ratified, any state wising to secede must blah blah' then we'd know. With the constitution silent, who knows?

And I'm not sure it matters. When GroupC is willing to fight to be free of GroupU, and GroupU is willing to fight to retain GroupC, you're going to have a war regardless of the legalities, and the winner will decide that whatever they did was legal.

[M L]

Secession was formally and legally documented. The CSA sent a delegation to negotiate terms of a peaceful separation and Lincoln refused to even admit them for discussion.

The legality was irrelevant to Lincoln, who reiterated many times that he would invade and levy war upon the South if they didn't continue to pay his taxes.

[bernard11]

he would invade and levy war upon the South if they didn’t continue to pay his taxes.

"His taxes." You give yourself away far too easily.

[David Nieporent]

The CSA sent a delegation to negotiate terms of a peaceful separation and Lincoln refused to even admit them for discussion.

Was this "peaceful separation" before or after they attacked the United States? (Trick question: they did that before Lincoln was even inaugurated.)

[Nige]

'Actually the Confederates weren't traitors' is the 'actually it's ephebophilia' of slavery apologism.

[AmosArch]

We have an entire industry and a new educational paradigm that teaches that the entire country and practically everything about it except for some additions post 1960 is fundamentally evil and must be demolished. compared to a few hicks who want to wave a weird flag around, this belief system is actually being forced by the government in schools and workplaces nationwide. nobody seems too fussed about that.

[Sarcastr0]

No, that's not the educational paradigm.

Teaching the negative is not focusing on the negative. Tammany Hall was not a great part of American History either, but no one thinks we should ignore it.

[AmosArch]

America literally wouldn't exist if the 1619 crowd had their way. Not much left if you take their definition of 'negative' out.

[Nige]

You clearly consider racism way more intrinsic to America's existence than even the most woke lefty SJW.

[grb]

I read about people in (say) Japan, China or Russia who refuse to face the mistakes of their country's past. This strikes me as cowardice or weakness; what kind of person finds refuge in ignoring a painful truth?

Then I hear comments from people like AmosArch and know exactly what that Chinese bureaucrat or Russian apparatchik is like.

[jimc5499]

So was a BLM flag allowed to be flown?

[shawn_dude]

Probably not... but if the Tuskegee Airman flew their flag (they do have one), that would be most appropriate.

[Richard Gadsden]

If the city is not allowed to use taxpayer money to propagate a viewpoint, then all celebrations, commemorations and other ceremonial actions are barred.

Flying the flag of the United States is propagating a viewpoint; on your theory, the US government should be barred from doing so.

[Krayt]

Privately-organized parades can keep out viewpoints seems correct.

This decision, government-organized parades keeping out viewpoints the government doesn't want seems correct.

Renting a few square yards of ad space for government profit on the side of a bus seems correct.

Renting a few square inches of ad space for government profit on a license plate does not.

Well, at least the one failure of freedom of speech is literally minute, in practice anyway.

[jimc5499]

Since a permit is often requires there is no such thing as a "Privately Organized Parade". The Government has a say so in your viewpoint because of requiring the permit. Look at some of the things that have happened over the last several months. How many time has a group obtained a permit for an event and while holding the event a group that disagrees with them shows up and provokes a confrontation? Then the Government's response is to revoke the permit and shut down the event instead of holding the other group responsible.

[shawn_dude]

This has already been litigated in various challenges by "gay Irish American" groups for inclusion into the Ancient Order of Hibernians St Patrick's Day parade.

[Flight-ER-Doc]

I did not see this coming.

So, a city can engage in viewpoint discrimination? How about banning a gay pride flag?

Seriously, would not be unhappy with this as a widespread and common viewpoint but it does seem a 180-degree reversal.

[AmosArch]

Yeah, this seems at odds with all those other times cities supposedly have to allow satanists to put up statues of leering demons alongside crosses and stars of david. I guess its one of those 'the law is whatever progs want it to be' things again.

[CommentMonkey]

I believe the difference is that the Alpharetta parade reflected the city's speech (celebrate veterans) whereas other parades did not express a particular message. When the government is just hosting a public forum, and not conveying a particular message, it is obliged to accept all comers and thus cannot exclude politically unpopular speakers. It has nothing to do with left/right politics.

[Flight-ER-Doc]

What about a city's transportation system, that wants to advocate for or against actions?

[AmosArch]

In that case localities should be able to just say they are engaging in speech rather than just erecting a forum with all those crosses and ten commandment displays that are being removed.

[Richard Gadsden]

The government does not have the right to engage in non-neutral speech on religious matters. Whatever you (or I) might think about that interpretation of "Congress shall make no law respecting an establishment of religion", that is the interpretation of the Supreme Court and thus the supreme law of the land.

So the city can legally say "the USA is good, the CSA lost and sucks", but it can't legally say "Christianity is good, Satanism is bad" - so they have to either allow for displays from all religions or none.

[Gandydancer]

I guess a parade to celebrate veterans is OK.

I'm not so sure about murals or large letters on the streets proclaiming "BLACK LIVES MATTER".

How about "I CAN'T BREATHE!"

[Richard Gadsden]

No, the difference is that the demons and stars of david and crosses are religious speech which is bound by the Establishment Clause, not by Freedom of Speech.

[Rossami]

There are some distinctions - primarily, the focus around 'who pays'. If the city has a generally-accessible venue where they allow others to use their own money to express a viewpoint (by, say, setting up a statue) but suddenly decides that "those bad people" can't get the same access to the venue and aren't allowed to spend their own money, that's a problem. But if the city is spending it's own money to send a message (such as "Smoking Bad"), there is no obligation on the city to actively enable contradicting viewpoints.

The equal-time doctrine was broken on many levels.

[Nisiiko]

Maybe government shouldn't be spending taxpayer money on any speech.

[Rossami]

Since speech includes things like "we should be spending money to ensure the national defense" and other things necessary to fulfill constitutional obligations, that's not a practical answer.

But a weaker "government shouldn't be spending taxpayer money on discretionary speech" might be an interesting proposal.

[Nisiiko]

How is ensuring the national defense speech?

[Eugene Volokh]

"Uncle Sam wants you."

[Flight-ER-Doc]

Since recruiting for the military is a legitimate role of the federal government, why is that a problem?

Now if the school board is advocating for it, that would be outside their scope..

[Absaroka]

How do you feel about the highway department having their reader boards say 'Use Your Turn Signal'? Do they need to give equal time to the Anti-Turn Signal League?

[Gandydancer]

Arguably that's merely informational about what's legal.

[Gandydancer]

Why is it "within the scope" of city government to celebrate veterans?

[Stephen Lathrop]

Because public honors have been a thing forever. It's an old-fashioned conservative notion, so so-called movement conservatives may be confused by it.

[Gandydancer]

Hardly necessary so long as conscription remains legal.

[WuzYoungOnceToo]

Since speech includes things like “we should be spending money to ensure the national defense” and other things necessary to fulfill constitutional obligations

Yeah, I'm also not clear on how talking about ensuring the national defense is a constitutional obligation. Actually ensuring it, yes...but spending money on talking about doing so?

[Gandydancer]

National defense is necessary.

Saying “we should be spending money to ensure the national defense” is not necessary.

[Flight-ER-Doc]

Indeed. There is much that government should not be wasting taxpayer money on...

[AmosArch]

I think there is a narrow range of acceptable government speech mostly around promoting basic infrastructure and elementary patriotism liberty etc. Obviously what most countries do is a lot more than this. In general the government promoting a specific morality does not work out that well.

[Sarcastr0]

That seems a pretty arbitrary line to draw.

[Nige]

The Republicans are going to be mad when they find out you're one of them anti-Christian types making war on Christmas and such.

[bernard11]

"Reminder: Trash pickup is Tuesday morning. Please have your trash cans out by 7 AM."

Or maybe they could play this.

[Longtobefree]

Gay pride flag? Maybe in exceptional circumstances.
BLM flag? Never in a million years.

[Gandydancer]

Why should the government be opposing the political views of many of those it uses guns to take money from by buying Gay Pride flags ever?

Maybe even "Celebrate Veterans!" should be left to interested private organizations.

[Richard Gadsden]

Why should the government be opposing the political views of many of those it uses guns to take money from by buying United States flags ever?

[Nige]

I guess it depends on the public backlash against a flag representing a portion of the current living population versus that against a flag representing a bunch of warmongering dead slavers.

[Rip Murdock]

See "Walker v. Texas Division, Sons of Confederate Veterans,
Inc., (where) the Supreme Court clarified that, “[w]hen [the] government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” 576 U.S. 200, 207 (2015)."

[Nelson]

I think the larger issue here is the fact that a parade to honor those who fought for our country shouldn't include the flag of those who fought against it. And got half a million Americans killed.

Sure, the Confederacy was evil. But in this case it also was one of the enemies of America and so does not belong in a parade honoring veterans.

[Stephen Lathrop]

And yet, in the very early 1950s, I saw a parade in Rockville, MD, which included marching veterans from 4 wars, in order from the most recent first: WW II (uniformed, very many); WW I (uniformed, also many); Spanish American War (only a few dozen), and last, two alleged veterans of the Civil War, both Southerners, riding in a convertible. There was supposed to have been a Union veteran too, but he was reportedly unable to manage for health reasons.

For a very long time after the Civil War, a spirit of reconciliation was widely supported, North and South—alongside a contrary spirit of Southern hostility to the North, and that alongside the different-feeling, "Lost Cause," thread. Where I lived, all three threads were an everyday part of the public life of the nation, paradoxically befuddling young school children like me. How Black kids took that in, I cannot say.

In third grade, right after my school was integrated, a bunch of pro-Southern stuff showed up in the curriculum. Black and White, we found ourselves singing, "Hurrah, hurrah, hurrah for the Bonnie Blue Flag of Southern liberty."

More than 30 years later, when my own son was about 5-years old, we visited the Capitol, and its Statuary Hall. I pointed out various figures, finally arriving at Robert E. Lee. "What's he doing here?" he demanded. It was so unexpected that it took me aback. I mumbled something like, "It's complicated." Later I tried to figure it out—to offer a better explanation—and in the effort learned how damnably difficult it was to explain that in any way that felt right, or even coherent.

As a nation, we are still struggling—now 30 years after that trip to Statuary Hall. But Lee is no longer there, and that at least feels more coherent.

[Brett Bellmore]

In fact, that soldiers on both sides of the war were equally "American" veterans was part of the settlement of the war, intended to assure that the Southern states would reintegrate into the US, rather than remaining rebellious conquered territory which had to be perpetually kept under military rule.

[Commenter_XY]

The issues I see here are presentism, paired with not fully appreciating all of the decisions made by Lincoln, Johnson and Grant in the aftermath of the war to re-unite the country.

It is easy in 2021, some 170 years after the Civil War, to say a version of WTF. What is not so easy: Put yourself into the zeitgeist of those times, and fully understand why our leaders (and ordinary people) made the decisions that they did. This part seems to get lost in the discussion.

[Brett Bellmore]

I think all three of those made some good decisions and bad, and am pretty tired of Lincoln hagiography.

But the decisions they made that people are complaining about were perfectly understandable, and probably even necessary.

[Pro Se]

You may find Cynthia Nicolette’s “Secession on Trial” an interesting read as it notes the presence or absence of such a right was not at all clear to those who were tasked with prosecution and defense of CSA leadership.

[Pro Se]

Typo…should read “Nicoletti’s”. She is a member of the UVA Law School faculty.

[Stephen Lathrop]

Brett, try not to forget that many of the decisions made in the post-war South were evil, some made with the worst motives in the world. And in the North, there was blundering, complicit and sympathetic racism, and political opportunism.

Both North and South—with relatively few saving exceptions among them—settled on a policy to abuse Blacks, to whom even the simplest and least expensive reparations owed were mostly denied. On the whole, after Reconstruction collapsed, the history of race in America had very little to do with anything understandable or necessary, and a great deal to do with agonizingly prolonged hatred, fear, and exploitation.

Mostly it was a wicked history of continued racism, an abomination. Until the 1960s, to the extent it was brightened at all, it was mostly by extraordinary moral examples contributed by black people seeking better—and often showing almost incomprehensible self-restraint as they did so.

As we see easily now, even the apparent mid-century turning point was anything but complete or sufficient. The customs and habits of Jim Crow continued for decades longer, with virulence more suppressed than diminished.

They continue even today, with a malign strength not only in the nation's culture, but also in its laws, its political life, and its government. With Shelby County the Supreme Court of the United States stepped up to demonstrate that even among the nation's highest leadership, there is still not the will to drive out the moral rot inflicted by the sin of slavery. It was a decision over which historians of the future will pause with incomprehension—one which showed a moral failure they will finally class with Dred Scott.

What changes since the 1950s have accomplished is to show that all the suppositions of black inferiority which pervaded racist circles then and still, can be dismissed with prejudice. I rejoice that I hear daily on the nation's broadcast media, and see in its print publications, opinions and contributions from Black people which prove by their quality that these are people notably superior to the racists who wanted them degraded. That is the most welcome measure of progress available. Although that progress remains insufficient, the successes prove the utility, necessity, and moral justification of policy measures to continue its furtherance.

[Brett Bellmore]

I've never been under the illusions about the South you seem to think I hold. The corrupt bargain of 1877 rendered the Republicans nearly as complicit in Jim Crow as the Democrats.

But pretending anything going on today is remotely similar to Jim Crow is an insult to everybody who suffered under it.

[grb]

Brett Bellmore: "...and am pretty tired of Lincoln hagiography"

Shelby Foote's three-volume monster often has successive sections on Lincoln and Jeff Davis. It's amazing how small, diminished and petty the latter looks by contrast. I was more impressed by Washington and Lincoln after getting beyond the surface hagiography.

[apedad]

Brett there wasn’t a settlement like if I was buying a house. The United States placed conditions and restrictions on the traitors and rebels which they had to except if they want to return to civil life within the United States.

[bernard11]

We may be charitable or have a forgiving attitude towards a wrongdoer.

That doesn't erase the wrong, or make it right, or require us to honor it.

[Stephen Lathrop]

Re-reading my comment, I realize I got the chorus of the Bonnie Blue Flag a bit wrong—at least as sung by us then. It actually went:

Hurrah! Hurrah!
For Southern rights, hurrah!
And Hurrah for the Bonnie Blue Flag of Southern Liberty.

Notably, the last bit, about, "Southern Liberty," seems to be a substitute for the conventional lyric reported by Wikipedia: "Which bears a single star."

I wonder if the substitution of, "Southern Liberty," was some kind of 1950s political statement.

[eyeroller]

Government should not pay for parades. Among other problems, it forces people to pay for the propagation of viewpoints they may disagree with.

[Brett Bellmore]

Government didn't do an enormous range of things it does anyway.

[Brett Bellmore]

Sorry, "shouldn't", not "didn't".

[Rev. Arthur L. Kirkland]

The ardent defense of the Confederacy among this White, male, obsolete blog's fans -- today's vestigial bigots siding with predecessor bigots -- indicates that Prof. Volokh can not control his carefully cultivated collection of conservative commenters.

This blog will continue to toss partisan, polemical red meat to those disaffected, disgusting right-wing misfits, though.

Carry on, clingers. Your betters -- in some cases, that will include deans and hiring committees -- will let you know how long and how far, or course.

[mydisplayname]

Oddly, this might be reversed if appealed and heard: pages 17 and 18 of the opinion may contain a subtle defect in thinking.

On a positive note, both the City and the 11th Circuit did acknowledge that a CSA veteran is an American veteran equal to an American veteran of [for example] the Vietnam War. Equality of regimental flags is a topic which has arisen before.

[Rip Murdock]

Unlikely, Walker v. Texas Division, Sons of Confederate Veterans,
Inc., 576 U.S. 200, 207 (2015) is controlling and on point, and cited in the first sentence of the opinion, that "“[w]hen [the] government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”"