`
`No. 21-953
`================================================================================================================
`In The
`Supreme Court of the United States
`--------------------------------- ♦ ---------------------------------
`RICHARD LEAKE and MICHAEL DEAN,
`Petitioners,
`
`v.
`JAMES T. DRINKARD, In his personal capacity and official
`capacity as Assistant City Administrator of the City of
`Alpharetta, Georgia; JIM GLIVIN, In his personal capacity
`and official capacity as Mayor of the City of Alpharetta;
`DONALD F. MITCHELL, In his personal capacity and official
`capacity as Mayor Pro Tem of the City of Alpharetta;
`JASON BINDER, In his personal capacity and official
`capacity as a member of the City Council of the City of
`Alpharetta; BEN BURNETT, In his personal capacity and
`official capacity as a member of the City Council of the
`City of Alpharetta; JOHN HIPES, In his personal capacity
`and official capacity as a member of the City Council of the
`City of Alpharetta; DAN MERKEL, In his personal capacity
`and official capacity as a member of the City Council of the
`City of Alpharetta; KAREN RICHARD, In her personal
`capacity and official capacity as a member of the City
`Council of the City of Alpharetta; and THE CITY OF
`ALPHARETTA, GEORGIA, a municipal corporation,
`Respondents.
`
`--------------------------------- ♦ ---------------------------------
`On Petition For Writ Of Certiorari To The United
`States Court Of Appeals For The Eleventh Circuit
`--------------------------------- ♦ ---------------------------------
`REPLY BRIEF
`--------------------------------- ♦ ---------------------------------
`H. EDWARD PHILLIPS III
` Counsel of Record
`219 Third Avenue North
`Franklin, Tennessee 37604
`(615) 599-1785, ext. 229
`edward@phillipslawpractice.com
`SCOTT D. HALL
`374 Forks of the River Parkway
`Sevierville, Tennessee 37862
`(865) 428-9900
`scott@scottdhallesq.com
`Attorneys for Petitioners
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`

`

`i
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF CONTENTS ......................................
`i
`TABLE OF AUTHORITIES .................................
`ii
`REPLY BRIEF .....................................................
`1
`STATEMENT OF JURISDICTION .....................
`1
`CONSTITUTIONAL AND STATUTORY PROVI-
`SIONS INVOLVED...........................................
`SUMMARY OF THE REASONS FOR GRANT-
`2
`ING THE PETITION ........................................
`3
`STATEMENT OF THE CASE..............................
`5
`ARGUMENT ........................................................
`CONCLUSION ..................................................... 12
`
`
`1
`
`

`

`ii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Cornelius v. NAACP Legal Def. & Educ. Fund,
`Inc., 473 U.S. 788 (1985) ...................................... 8, 10
`Gerlich v. Leath, 861 F.3d 697 (8th Cir. 2017) ............. 9
`Hurley v. Irish – Am. Gay, Lesbian & Bisexual
`Grp. of Bos., Inc., 515 U.S. 557 (1995) ................... 5
`Latino Officers Ass’n, N.Y., Inc. v. City of N.Y.,
`196 F.3d 458 (2d Cir. 1999) ..................................... 10
`Perry Ed. Assn. v. Perry Local Educators’ Assn.,
`460 U.S. 37 (1983) ..................................................... 9
`Pleasant Grove City v. Summum, 555 U.S. 460
`(2009) ....................................................... 2, 5, 8, 9, 12
`Police Dept. of Chicago v. Mosley, 408 U.S. 92
`(1972) ..................................................................... 8, 9
`Reed v. Town of Gilbert, 576 U.S. 155 (2015) ............. 11
`Rosenberger v. Rector and Visitors of Univ. of Va.,
`515 U.S. 819 (1995) ................................................... 5
`Walker v. Texas Division, Sons of Confederate
`Veterans, Inc., 576 U.S. 200 (2015) ................ 2, 5, 6, 7
`Wandering Dago, Inc. v. Destito, 879 F.3d 20 (2d
`Cir. 2018) ................................................................... 9
`Wilkinson v. United States, 365 U.S. 399 (1961) .......... 2
`Wood v. Moss, 572 U.S. 744 (2014) ................................ 8
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. amend. I ........................................... passim
`
`

`

`iii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`STATUTES
`28 U.S.C. § 1254(1) ........................................................ 1
`38 U.S.C. § 1501 ............................................................ 3
`38 U.S.C. § 1532 ............................................................ 3
`
`RULES
`Sup. Ct. R. 11 ................................................................ 2
`Sup. Ct. R. 15.6 ............................................................. 1
`
`

`

`1
`
`REPLY BRIEF
`
`Richard Leake and Michael Dean, Petitioners in
`
`this action, have heretofore filed their petition that a
`writ of certiorari issue to review the judgment of the
`United States Court of Appeals for the Eleventh Cir-
`cuit entered in this case on September 28, 2021.
`--------------------------------- ♦ ---------------------------------
`
`STATEMENT OF JURISDICTION
`
`The judgment of the court of appeals, as set forth,
`
`was entered on September 28, 2021. The jurisdiction of
`this court is invoked pursuant to 28 U.S.C. § 1254(1).
`
`Petitioners invoke the provisions of Rule 15.6 of
`
`the Rules of the Supreme Court of the United States
`as the basis for filing this Reply.
`--------------------------------- ♦ ---------------------------------
`
`CONSTITUTIONAL AND
`STATUTORY PROVISIONS INVOLVED
`
`The constitutional and statutory provisions in-
`
`volved in this case have been adequately set forth in
`the Petition for Writ of Certiorari.
`--------------------------------- ♦ ---------------------------------
`
`
`
`
`

`

`2
`
`SUMMARY OF THE REASONS
`FOR GRANTING THE PETITION
`
`Contrary to the fallacious and misleading asser-
`
`tions of Respondents, the petition does present a com-
`pelling basis for granting certiorari.
`
`Rule 11 of the Rules of the United States Supreme
`
`Court provides that review on a writ of certiorari is not
`a matter of right, but of judicial discretion and that a
`petition for a writ of certiorari will be granted only for
`compelling reasons. The Rule specifically states that
`one of the reasons for granting the writ is that “a
`United States court of appeals . . . has decided an im-
`portant federal question in a way that conflicts with
`relevant decisions of this Court.” This consideration
`justifies the granting of certiorari in order to consider
`a petitioner’s claim that a circuit court of appeals had
`misconceived the meaning of a Supreme Court decision
`which it found to be “controlling” with regard to the pe-
`titioner’s case. Wilkinson v. United States, 365 U.S. 399
`(1961).
`
`Petitioner respectfully contends that the Eleventh
`
`Circuit failed to discern the meaning of relevant hold-
`ings of this court as articulated in Pleasant Grove City
`v. Summum, 555 U.S. 460 (2009), and Walker v. Texas
`Division, Sons of Confederate Veterans, Inc., 576 U.S.
`200 (2015), by using a confused understanding of the
`government speech doctrine as justification for re-
`stricting the right of individuals and groups to use
`public forums as platforms for the articulation of views
`which may not be embraced by either the government
`or a majority of citizens. The danger posed by the
`
`

`

`3
`
`decision of the Eleventh Circuit is that it eviscerates
`the public forum doctrine in the course of utterly mis-
`applying the government speech principle.
`--------------------------------- ♦ ---------------------------------
`
`STATEMENT OF THE CASE
`
`Petitioners submit that their Statement of the
`
`Case accurately describes the factual background of
`this proceeding. However, Petitioners respectfully sub-
`mit that Respondents have misconstrued and mis-
`stated circumstances which are material and relevant
`to a proper understanding of the issues presented.
`
`The Old Soldiers Day Parade of Alpharetta, Geor-
`
`gia initially began after the conclusion of the Civil War
`to honor veterans of that conflict, and it continued un-
`til around 1928. The parade resumed in 1952, and it
`has continued on the public streets of the municipality
`since then.
`
`The city advertised the parade on its website,
`
`which stated that the parade’s purpose was “to cele-
`brate and honor all war veterans, especially those from
`Alpharetta, who have defended the rights and free-
`doms enjoyed by everyone in the United States of
`America.” Given that the stated purpose of the event
`was to honor “all war veterans,” it is incongruous for
`the Respondents to ignore the plain fact that the Con-
`gress of the United States has defined and granted the
`status and benefits of being a “Civil War Veteran” to
`any person “who served in the military or naval forces
`
`

`

`4
`
`of the Confederate States of America during the Civil
`War.” See 38 U.S.C. §§ 1501 and 1532 (2018).
`
`The parade application expressly referenced the
`
`American Legion as a sponsor, and it bore the emblem
`of the American Legion, in addition to that of the city.
`Despite the fact that the parade would be conducted
`upon the municipal streets of Alpharetta, the city de-
`cided for itself who, or what entities, would be permit-
`ted to participate in the parade based upon the overall
`message the mayor and city council wanted the Parade
`to communicate. In pretextually denying the applica-
`tion of the Petitioners on behalf of the Roswell Mills
`Camp, Sons of Confederate Veterans, the city refused
`to acknowledge that the Sons of Confederate Veterans
`is an “organization dedicated to preserving the memory
`of our ancestors who served in the War Between the
`States and ensuring that the Southern view of that
`conflict is preserved.” By submitting their application,
`Petitioners agreed to “abide by all rules and regula-
`tions set forth by the event organizers in the Old Sol-
`diers Day Parade.” The sole objection to Petitioners’
`application was their stated intent to display the Con-
`federate Battle Flag, a recognized historical artifact.
`On this record, there is no evidence that Respondents
`circumscribed, limited, or censored the display of any
`participant, other than the Sons of Confederate Veter-
`ans, in the event whatsoever.
`--------------------------------- ♦ ---------------------------------
`
`
`
`
`

`

`5
`
`ARGUMENT
`
`THE ELEVENTH CIRCUIT COURT OF APPEALS
`INCORRECTLY APPLIED THE GOVERNMENT
`SPEECH DOCTRINE AS ENUNCIATED IN
`WALKER V. TEXAS DIVISION, SONS OF CON-
`FEDERATE VETERANS, INC., AND IT DID SO
`IN A MANNER WHICH IMPERMISSIBLY RE-
`STRICTED THE FIRST AMENDMENT PRO-
`TECTIONS EXTENDED TO PUBLIC FORUMS.
`
`The First Amendment is intended to protect pri-
`
`vate persons from “encroachment[s] by the govern-
`ment” on their right to speak freely, Hurley v. Irish –
`Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S.
`557, 566 (1995), not as a sword to compel the gov-
`ernment to speak for them. While the Free Speech
`Clause of the First Amendment “restricts government
`regulation of private speech; it does not regulate gov-
`ernment speech.” Pleasant Grove City v. Summum, 555
`U.S. 460, 467 (2009) (“[A] government entity has the
`right to speak for itself,” which consists generally in
`the ability “to say what it wishes” and “to select the
`views that it wants to express.”). Nonetheless, the gov-
`ernment may not favor one speaker over another in ex-
`ercising its right to speak or not to speak. Rosenberger
`v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828
`(1995). To that end, the courts should exercise care in
`applying the government speech label to actions un-
`dertaken by the government. Walker, supra at 221
`(2015) (Alito, J., dissenting) (“The Court’s decision
`passes off private speech as government speech, and,
`in doing so, establishes a precedent for threatening pri-
`vate speech that the government finds displeasing.”).
`
`

`

`6
`
` While this court concluded in Walker that the
`specialty license plates for motor vehicles in Texas
`constituted government speech, it did not lay down a
`rote formula to be followed in resolving questions such
`as those posed by the present case, which implicates
`the public forum doctrine. The present case is not
`about government speech; instead, it is a case which
`requires application and understanding of the public
`forum doctrine. For Respondents to argue otherwise is
`to engage in wholesale misreading and misapplication
`of the facts of this case and the controlling authori-
`ties.
`
`From the resumption of the Old Soldiers Parade in
`
`1952 until 2017, the SCV had participated in the pa-
`rade in a manner that allowed its members to appear
`in uniform and to display the Confederate Battle Flag.
`Yet, in 2018, and again in 2019 Respondents con-
`sciously and purposefully undertook to change the
`rules for participation in the event in order to block the
`expression of speech by the SCV and its members. The
`simple act of final approval by the city government
`cannot be allowed to determine whether the govern-
`ment speech doctrine applies. If that were the case, the
`government itself would be empowered to bestow, as
`well as withhold, approval of messages to be articu-
`lated by private individuals and entities. The end re-
`sult would be to empower the government to suppress
`private speech for its own benefit and to exclude the
`possibility of dissent from accepted viewpoints.
`
` Walker cannot be applied in a formulaic manner.
`Instead, it must be understood as setting forth factors
`
`

`

`7
`
`which are to be considered in determining whether a
`certain articulation constitutes government speech.
`While Walker does direct that attention be paid to mat-
`ters such as history, endorsement, and control, Re-
`spondents fails to address the reasons articulated by
`Petitioners that the parade does not constitute govern-
`ment speech. First, the history of the Alpharetta pa-
`rade tends to establish that it was never intended or
`understood as communicating a specific message from
`the city; the parade originated and resumed as a
`direct result of actions and decisions undertaken
`by the citizens of Alpharetta, including then-
`living Confederate veterans at the time of the
`parade’s inception, not as a consequence of a de-
`cision made by the municipal government. Second,
`there is no basis for concluding that an observer of the
`parade would understand that the city approved any
`message being conveyed by its numerous participants,
`who were free to portray themselves and communicate
`in the manner which they chose, with the sole excep-
`tion being Petitioners on the ground that their partici-
`pation in the event would be offensive to one or more
`individuals and groups. Third, other than choosing to
`exclude Petitioners from the parade, the record does
`not tend to show that the city retained any direct con-
`trol over the messages conveyed in the parade.
`
`Despite their protestations to the contrary, Re-
`
`spondents have failed to establish that the factors ar-
`ticulated in Walker, in light of the factual context of
`this specific case, cause the parade to constitute gov-
`ernment speech and to warrant the betrayal of
`
`

`

`8
`
`fundamental First Amendment protections which are
`inherent in the public forum doctrine.
`
`The streets of Alpharetta, Georgia constitute a
`
`public forum, a parade conducted upon such streets is
`a protected exercise of freedom of speech guaranteed
`by the First Amendment; and the city cannot discrimi-
`nate among speakers based upon the content of their
`expression. Respondents have willfully chosen to ig-
`nore that the government may not regulate speech
`based on its substantive content or the message it con-
`veys, Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96
`(1972), and that “government officials may not exclude
`from public places persons engaged in peaceful ex-
`pressive activity solely because the government actor
`fears, dislikes, or disagrees with the views those per-
`sons express.” Wood v. Moss, 572 U.S. 744 (2014).
`
`“The forum doctrine has been applied in situations
`
`in which government-owned property or a government
`program was capable of accommodating a large num-
`ber of public speakers without defeating the essential
`function of the land or the program.” Summum, 555
`U.S. at 478. The forum doctrine requires a court to
`identify the nature of the forum, because the extent to
`which the Government may limit access depends on
`whether the forum is public or nonpublic. Cornelius v.
`NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,
`800-01 (1985). Thereupon, the court “must assess
`whether the justifications for exclusion from the rele-
`vant forum satisfy the requisite standard.” Id.
`
`

`

`9
`
` While Summum is a comprehensive exposition of
`the public forum doctrine, it is very fact specific in that
`it involved a public park and green-space which the
`municipality sought to preserve against the intrusion
`of monuments articulating countervailing positions in
`a permanent manner. In the present case, the public
`forum involved were the streets and sidewalks of Al-
`pharetta, and the use to which they were to be put was
`necessarily of a transient nature.
`
`Streets and parks have long been recognized as
`
`public forums held in trust for the use of the public
`and, time out of mind, have been used for purposes of
`assembly, communicating thoughts between citizens,
`and discussing public questions. See Perry Ed. Assn. v.
`Perry Local Educators’ Assn., 460 U.S. 37, 45-46 (1983).
`It necessarily follows that government may not engage
`in viewpoint discrimination among private speakers
`exercising their free speech rights in a public forum.
`Mosley, 408 U.S. at 756-57.
`
`Courts cannot engage in overly expansive inter-
`
`pretations of the government speech doctrine in order
`to justify fundamental First Amendment principles
`forbidding viewpoint discrimination in public forums.
`See Gerlich v. Leath, 861 F.3d 697 (8th Cir. 2017). The
`discriminatory intent of Respondents is established by
`the strict scrutiny applied to Petitioners’ application
`and the specific demand that the Confederate Battle
`Flag not be displayed by the SCV. No other group or
`participant in the parade was subject to any specific
`limitation on their conduct or participation. See Ger-
`lich, 861 F.3d at 705-06. The private speech of citizens
`
`

`

`10
`
`does not become the public speech of the government
`merely because the government provides the forum in
`which the private speech is expressed. Cornelius, 473
`U.S. at 811-13 (a charity drive organized by govern-
`ment was nonpublic forum for private speakers to
`solicit donations, and therefore that viewpoint dis-
`crimination was prohibited); Latino Officers Ass’n,
`N.Y., Inc. v. City of N.Y., 196 F.3d 458, 468-69 (2d Cir.
`1999) (holding that a police department’s refusal to
`permit police affinity group to march in parades was
`not a form of government speech); compare Wandering
`Dago, Inc. v. Destito, 879 F.3d 20, 35 (2d Cir. 2018) (“The
`record contains no basis for thinking that Lunch Pro-
`gram vendors’ names, any more than the names of
`other organizations that receive permits to use public
`lands for special events, are closely identified with the
`government ‘in the public mind.’ ”).
`
`The record shows the city’s acceptance of all ap-
`
`plications to participate in the parade except that of
`Petitioners. It is nonsensical to argue that the Re-
`spondents’ curation of the parade did not implicate
`First Amendment concerns, particularly since the
`record is clear that only Petitioners were excluded
`from participation and that such exclusion was based
`solely on the ground that some would find the Confed-
`erate Battle Flag to be offensive. The design of the
`application process, as well as the manner in which
`it was administered, establish beyond any doubt that
`Respondents acted with actual discriminatory intent
`based upon their desire to foreclose speech based
`solely upon its content and the perceived reaction of
`
`

`

`11
`
`third-parties to it: in other words, first the Confederate
`Battle Flag; the next time, another Confederate sym-
`bol or any other flag or symbol deemed unacceptable
`to the city, an individual, or group, with no end in
`sight; perhaps even a pre-Civil War American flag,
`none of which have been abrogated by Congress, or a
`legacy state flag. The city’s restriction of Petitioners’
`speech was content-based because they intended to
`display the Confederate Battle Flag and regimental
`standards of Georgia Confederate units, while individ-
`uals wore uniforms replicating those used in the con-
`flict. “Content-based laws – those that target speech on
`its communicative content – are presumptively uncon-
`stitutional and may be justified only if the govern-
`ment proves that they are narrowly tailored to serve
`compelling government interests.” Reed v. Town of
`Gilbert, 576 U.S. 155, 163 (2015).
`
` While Respondents contend that Petitioners have
`waived any argument implicating the public forum
`doctrine, that argument fails for three specific reasons.
`
`First, the distinction between government speech
`
`and private speech, as well as the public forum doc-
`trine, necessarily implicate the First Amendment and
`its reach. Strict scrutiny of restrictions upon free ex-
`pression requires that any such restriction survive un-
`der all conceivable First Amendment theories, of which
`the public forum doctrine is but one. As Petitioners
`have made clear, the concept of government speech
`cannot be applied in a manner which is consistent with
`the First Amendment if the government speech itself
`implicates the public forum doctrine.
`
`

`

`12
`
`Second, Summum itself addresses two competing
`
`doctrines: that of government speech and that of the
`public forum. Neither doctrine is exclusive of the other
`in the realm of the First Amendment. In fact, Sum-
`mum stands for the proposition that the government
`speech doctrine cannot be applied without addressing
`First Amendment concerns, which are implicit in the
`notion of public forums.
`
`Third, the record is clear that the parties, as well
`
`as both lower courts, addressed the reach of Summum
`in earlier proceedings. While neither of the lower courts
`specifically addressed the public forum doctrine in
`their decisions, the notion of government speech can-
`not be invoked as a shield to prevent the application of
`strict scrutiny to attempts on the part of government
`to regulate speech with which it disagrees or which is
`disapproved by some constituents of the government.
`--------------------------------- ♦ ---------------------------------
`
`CONCLUSION
`
`Petitioners respectfully pray that this court would
`
`issue its writ of certiorari to the United States Court
`of Appeals for the Eleventh Circuit so that the issues
`presented herein might be considered in argument.
`
`
`
`
`

`

`13
`
`Respectfully submitted, this 14th day of March
`
`2022.
`
`H. EDWARD PHILLIPS III
` Counsel of Record
`219 Third Avenue North
`Franklin, Tennessee 37604
`(615) 599-1785, ext. 229
`edward@phillipslawpractice.com
`SCOTT D. HALL
`374 Forks of the River Parkway
`Sevierville, Tennessee 37862
`(865) 428-9900
`scott@scottdhallesq.com
`Attorneys for Petitioners
`
`