Sons of the Confederate Veterans gathered earlier this month on Hopkins Green. Photo by Tilden Bowditch

By Megan Shaw

The controversy over Confederate flags in Lexington heated up again earlier this month when the Sons of Confederate Veterans filed a lawsuit accusing the city of violating the organization’s constitutional rights by forbidding the display of the Confederate flag on public flagpoles.

In the lawsuit, the group claims Lexington’s ordinance banning the display of Confederate flags on city flagpoles violates both the First Amendment and a 1993 court order.

The most recent round of the flag debate began last winter when the Sons of Confederate Veterans asked City Council to allow them to fly Confederate flags for a week in honor of Lee-Jackson Day. The Council agreed to fly the flags during the week but refused to do so over the weekend, opting instead to fly American and Virginia flags for Martin Luther King, Jr. Day.

In September, the Council adopted a new flag and banner ordinance stating that only the American flag, the Commonwealth of Virginia flag and the city flag could be flown on public poles. Brandon Dorsey, commander of the local Stonewall Brigade of the Sons of Confederate Veterans, told the Associated Press, “This ordinance was adopted due to the sole reason of the city’s disapproval of the Son’s Constitutional rights to display historic Virginia state and Confederate flags.”

This is not the first flag-related lawsuit Lexington has faced. A similar case in 1993 resulted in a federal court order mandating that neither the city nor any individual could deny the Sons of Confederate Veterans the right to “carry, display, or show … the Confederate flags or other banners, emblems, icons.”

Lexington City Attorney Laurence Mann is representing the city along with Roanoke attorney Jeremy Carroll. Both Mann and Carroll said they couldn’t say much about the current lawsuit.

“We just can’t make any assumptions,” Carroll said.

The Sons of Confederate Veterans are represented by Roanoke-based employment discrimination attorney Thomas Strelka and The Rutherford Institute, a nonprofit organization “dedicated to the defense of civil liberties and human rights,” according to the organization’s website.

Since its founding in 1982, the Charlottesville-based Rutherford Institute has provided free legal services to individuals or groups claiming that their civil rights have been threatened and violated. The organization also educates the public on proceedings and issues that affect its constitutional freedoms.

This isn’t the first Confederate flag case the Rutherford Institute has dealt with.  Last year, attorneys from the institute won a free speech case in Kansas after Topeka city employee Kyle Erickson was reprimanded for displaying Confederate flags on his car.  Representatives of the city said the display was “racially…offensive” and violated Topeka’s Prevention of Hostile Work Environment Policy.
Lawyers from the Rutherford Institute called the city policy “unconstitutional on its face because of its censorship of protected speech.”

In a May 2011 U.S. District Court ruling, Judge Sam Crow ruled that Erickson’s display of a Confederate flag as an expression of his heritage was protected speech and could not be prohibited.
In a statement about the Lexington ordinance, Rutherford Institute founder John Whitehead said: “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.”

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