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Eleventh Circuit Court of Appeals holds that city’s refusal to permit flying of Confederate Flag at “Old Soldier’s Day Parade” did not violate participant’s free speech rights

On September 28, 2021, in Leake, et al. v. Drinkard, No. 20-13868, the Eleventh Circuit Court of Appeals affirmed a district court’s summary judgment for the defendant City of Alpharetta, Georgia in a 42 U.S.C. § 1983 civil rights lawsuit. The lawsuit was filed by would-be participants in the City’s Old Soldiers Day Parade who claimed that their free speech rights under the First and Fourteenth Amendments were violated when the City refused to allow them to display the Confederate Flag while marching in the Parade. The district court granted summary judgment for the City on the ground that the Parade constituted government speech. The Eleventh Circuit agreed, quoting from the U.S. Supreme Court’s decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015): “[w]hen [the] government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” The Court went on to note that there are three factors used to distinguish government speech from private speech: history, endorsement and control, citing Cambridge Christian Sch., Inc. v. Fla. High Sch. Athletic Ass’n, 942 F.3d 1215, 1230 (11th Cir. 2019). The Court noted that the history of military parades established that the Parade was or the sort traditionally associated with governments, the City expressly endorsed the Parade’s message by actively promoting it, and the City maintained direct control over the messages conveyed in the Parade by administering an application process for participation in the Parade.

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