The Fourth Circuit last week unanimously affirmed the dismissal of a Free Speech and related civil contempt claim brought by a Confederate veterans’ group who wish to fly the Confederate flag on city-owned flag standards in Lexington, Virginia during the group’s Lee-Jackson Day parade. Judge King wrote the opinion for the court in Sons of Confederate Veterans, Virginia Division v. Lexington, in which Judge Diaz and Judge Floyd joined. (For prior coverage, including links to early news stories, see How Appealing.)
Based on the facts described in the opinion, the Fourth Circuit’s decision seems to reach the right outcome on the First Amendment and civil contempt claims (although it would have been helpful to know a little bit more about the wording of the earlier consent decree).
The interesting First Amendment issue raised by the case is the extent to which government motive matters when the government converts a designated public forum to a nonpublic forum. The relevance of legislative motivation is one of the most vexing issues in constitutional law, but the panel opinion does not provide too much discussion of this issue.
I was under the impresson that, for free speech cases, United States v. O’Brien sort of ended the debate about “actual” governmental motives.
Yes, O’Brien does stand as a general commitment to avoid inquiries into subjective legislative purpose in First Amendment analysis. But legislative motive may still matter for various reasons. For example, Justice Kagan argued in a 1996 law review article that “notwithstanding the Court’s protestations in O’Brien, . . . First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives.”