`
`No. _________
`================================================================================================================
`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
`--------------------------------- ♦ ---------------------------------
`PETITION FOR WRIT OF CERTIORARI
`--------------------------------- ♦ ---------------------------------
`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
`
`QUESTIONS PRESENTED
`
`
`1. Whether the District Court and Eleventh Circuit
`Court of Appeals erred when applying the “Gov-
`ernment Speech” doctrine to limit the speech of
`private citizens and organizations participating in
`government sponsored parades on the basis of
`flags which such participants wish to display in an
`objective historical context, which occur on public
`streets and are open to all participants that have
`submitted proper applications, in violation of the
`First Amendment to the United States Constitu-
`tion.
`
`2. Whether the District Court and Eleventh Circuit
`Court of Appeals impermissibly expanded the
`“Government Speech” doctrine to limit the use of
`historic flags upon which the local government has
`imposed a particular meaning, and which can be
`used to ban any symbol the government wishes to
`restrict thereafter in violation of the First Amend-
`ment to the United States Constitution.
`
`

`

`ii
`
`LIST OF PARTIES TO THE
`PROCEEDINGS IN THE COURT BELOW
`
`
`The caption of the case in this court contains the
`
`names of all of the parties to the proceedings in the
`United States Court of Appeals for the Eleventh Cir-
`cuit.
`
`
`
`STATEMENT OF RELATED CASES
`1. Richard Leake, et al. v. James T. Drinkard,
`
`et al.; United States District Court for the Northern
`District of Georgia (1:19-cv-03463-WMR); judgment
`granting Defendants’ motion for summary judgment
`entered on June 26, 2020.
`2. Richard Leake, et al. v. James T. Drinkard,
`
`et al.; United States Court of Appeals for the Eleventh
`Circuit (20-13868); judgment affirming the judgment
`of the district court entered on September 28, 2021.
`
`
`
`There are no other related cases.
`
`

`

`iii
`
`TABLE OF CONTENTS
`
`Page
`Questions Presented ............................................
`i
`List of Parties to the Proceedings in the Court
`ii
`Below ................................................................
`ii
`Statement of Related Cases .................................
`Table of Authorities ............................................. vi
`Opinions Below ....................................................
`1
`Statement of Jurisdiction ....................................
`1
`Constitutional and Statutory Provisions In-
`volved ................................................................
`Statement of the Case .........................................
`Reasons for Granting the Writ ............................
` 1. The District Court and Eleventh Circuit
`Court of Appeals erred when applying the
`“Government Speech” doctrine to limit the
`speech of private citizens and organiza-
`tions participating in government spon-
`sored parades on the basis of flags which
`such participants wish to display in an ob-
`jective historical context, which occur on
`public streets and are open to all partici-
`pants that have submitted proper applica-
`tions, in violation of the First Amendment
`to the United States Constitution .............
`
`2
`3
`7
`
`8
`
`

`

`iv
`
`TABLE OF CONTENTS—Continued
`
`Page
`Argument .............................................................
`8
`A. The District Court and the Circuit
`Court of Appeals failed to take into ac-
`count the factors enunciated in Walker
`v. Texas Division, Sons of Confederate
`Veterans, Inc. for determining whether
`action of the City of Alpharetta consti-
`tuted government speech, and such fail-
`ure caused those courts to ignore in toto
`the constitutional doctrine which pro-
`vides blanket protection for the speech
`which Petitioners sought to communi-
`cate .......................................................
`B. The streets of Alpharetta, Georgia con-
`stitute a public forum, and a parade
`conducted upon such streets is a pro-
`tected exercise of freedom of speech
`guaranteed by the First Amendment;
`and the city cannot discriminate among
`speakers based upon the content of
`their expression .................................... 16
` 2. The District Court and Eleventh Circuit
`Court of Appeals impermissibly expanded
`the “Government Speech” doctrine to limit
`the use of historic flags upon which the lo-
`cal government has imposed a particular
`meaning, and which could be used to ban
`any symbol the government wishes to re-
`strict thereafter in violation of the First
`Amendment to the United States Consti-
`tution ......................................................... 25
`
`8
`
`

`

`v
`
`TABLE OF CONTENTS—Continued
`
`Page
`Conclusion ............................................................ 39
`APPENDIX
`A. Opinion of the United States Court of Ap-
`peals for the Eleventh Circuit ...................... App. 1
`B. Order of United States District Court for
`the Northern District of Georgia, June 26,
`2020 ............................................................. App. 22
`C. Order of United States District Court for
`the Northern District of Georgia, October 8,
`2020 ............................................................. App. 35
`
`

`

`vi
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`American Legion Post 7 of Durham, N.C. v.
`Durham, 239 F.3d 601 (4th Cir. 2001) .................... 15
`Ark. Educ. Television Comm’n v. Forbes, 523 U.S.
`666 (1998) .................................................................. 9
`Bachellar v. Maryland, 397 U.S. 564 (1970) .............. 28
`Bantam Books, Inc. v. Sullivan, 372 U.S. 58
`(1963) ....................................................................... 22
`Beauharnais v. Illinois, 343 U.S. 250 (1952) .............. 28
`Bd. of Airport Comm’rs of City of LA. v. Jews for
`Jesus, Inc., 482 U.S. 569 (1987) ............................... 21
`Brandenburg v. Ohio, 395 U.S. 444 (1969) ................. 28
`Burson v. Freeman, 504 U.S. 191 (1992) ..................... 21
`Chaplinsky v. New Hampshire, 315 U.S. 568
`(1942) ....................................................................... 28
`City of Boerne v. Flores, 521 U.S. 507 (1997) ........ 20, 21
`City of Lakewood v. Plain Dealer Publ’g Co., 486
`U.S. 750 (1988) ........................................................ 22
`Cohen v. California, 403 U.S. 15 (1971) ..................... 38
`Cornelius v. NAACP Legal Def. & Educ. Fund,
`Inc., 473 U.S. 788 (1985) .................................... 17, 20
`Forsyth Cnty. v. Nationalist Movement, 505 U.S.
`123 (1992) ................................................................ 22
`Gerlich v. Leath, 861 F.3d 697 (8th Cir. 2017) ........... 19
`
`
`

`

`vii
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Giboney v. Empire Storage & Ice Co., 336 U.S.
`490 (1949) ................................................................ 28
`Gitlow v. New York, 268 U.S. 652 (1925) ...................... 8
`Hill v. Colorado, 530 U.S. 703 (2000) ......................... 21
`Hurley v. Irish–Am. Gay, Lesbian & Bisexual
`Grp. of Bos., Inc., 515 U.S. 557 (1995) ........... 9, 23, 24
`Hustler Magazine, Inc. v. Falwell, 485 U.S. 46
`(1988) ....................................................................... 28
`Latino Officers Ass’n, N.Y., Inc. v. City of N.Y.,
`196 F.3d 458 (2d Cir. 1999) ..................................... 20
`McCullen v. Coakley, 573 U.S. 464 (2014) .................. 21
`Members of City Council of Los Angeles v. Tax-
`payers for Vincent, 466 U.S. 789 (1984) .................. 16
`Matal v. Tam, 137 S. Ct. 1744 (2017) ............. 31, 32, 34
`Minn. Voters All. v. Mansky, 138 S. Ct. 1876
`(2018) ....................................................................... 17
`NAACP v. Button, 371 U.S. 415 (1963) ....................... 21
`National Socialist Party of America v. Skokie,
`432 U.S. 43 (1977) ............................................. 24, 35
`National Socialist Party of America v. Village of
`Skokie, 51 Ill.App.3d 279, 366 N.E.2d 347
`(1977) ....................................................................... 36
`Perry Ed. Assn. v. Perry Local Educators’ Assn.,
`460 U.S. 37 (1983) ............................................. 17, 18
`Papish v. Bd. Curators of University of Missouri,
`410 U.S. 667 (1973) ........................................... 26, 27
`
`

`

`viii
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Pleasant Grove City v. Summum, 555 U.S. 460
`(2009) ............................................................... passim
`Police Dept. of Chicago v. Mosley, 408 U.S. 92
`(1972) ................................................................. 16, 18
`R.A.V. v. St. Paul, 505 U.S. 377 (1992).................. 16, 28
`Reed v. Town of Gilbert, 576 U.S. 155 (2015) ....... 20, 21
`Rosenberger v. Rector and Visitors of Univ. of Va.,
`515 U.S. 819 (1995) ................................................... 9
`Roth v. United States, 354 U.S. 476 (1957) ................ 28
`Rowan v. Post Office Dept., 397 U.S. 728 (1970) ......... 38
`Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115
`(1989) ....................................................................... 21
`Simon & Schuster, Inc. v. Members of N.Y. State
`Crime Victims Bd., 502 U.S. 105 (1991) .................. 16
`Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ......... 34
`Street v. New York, 394 U.S. 576 (1969) ...................... 27
`Stromberg v. California, 283 U.S. 359 (1931) ............. 24
`Texas v. Johnson, 491 U.S. 397 (1989) ........................ 27
`Tinker v. Des Moines Independent Community
`School Dist., 393 U.S. 503 (1969) ...................... 24, 28
`Turner Broadcasting System, Inc. v. FCC, 512
`U.S. 622 (1994) ........................................................ 16
`United States v. Grace, 461 U.S. 171 (1983) ............... 18
`United States v. Schwimmer, 279 U.S. 644
`(1929) .................................................................... 34
`
`

`

`ix
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`United States v. Stevens, 559 U.S. 460 (2010) ...... 28, 29
`Village of Skokie v. National Socialist Party of
`America, 69 Ill.2d 605, 373 N.E.2d 21 (1978) ......... 37
`Virginia Bd. of Pharmacy v. Virginia Citizens
`Consumer Council, Inc., 425 U.S. 748 (1976) ......... 28
`Walker v. Texas Division, Sons of Confederate
`Veterans, Inc., 576 U.S. 200 (2015) .................. passim
`Wandering Dago, Inc. v. Destito, 879 F.3d 20 (2d
`Cir. 2018) ................................................................. 20
`West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624
`(1943) ....................................................................... 24
`Wood v. Moss, 572 U.S. 744 (2014) .............................. 18
`
`CONSTITUTION AND AMENDMENTS
`U.S. Const. amend. I ........................................... passim
`
`STATUTES
`Tex. Transp. Code Ann. §§ 504.801(a), (b) .................. 10
`Tex. Transp. Code Ann. § 504.801(c) .......................... 11
`15 U.S.C. § 1052(a) (2021) .......................................... 32
`24 U.S.C. § 279(a) (repealed 1 September 1973) ........ 14
`38 U.S.C. § 1501 (2018) ............................................... 13
`38 U.S.C. § 1532 (2018) ............................................... 13
`
`
`
`
`
`

`

`x
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`REGULATIONS
`43 Tex. Admin. Code § 217.45(i)(2)(C) ........................ 10
`
`MISCELLANEOUS
`Trademark Manual of Examining Procedure
`§ 1203.03(b)(i) (Apr. 2017) ................................. 32, 33
`
`
`SECONDARY AUTHORITIES
`1 Smolla & Nimmer on Freedom of Speech
`§ 8:1.50 (2021) ................................................... 18, 19
`
`

`

`1
`
`PETITION FOR A WRIT OF CERTIORARI
`
`Richard Leake and Michael Dean, Petitioners in
`
`this action, respectfully request that a writ of certio-
`rari issue to review the judgment of the United States
`Court of Appeals for the Eleventh Circuit entered in
`this case on September 28, 2021.
`--------------------------------- ♦ ---------------------------------
`
`OPINIONS BELOW
`
`The September 28, 2021, opinion of the United
`
`States Court of Appeals for the Eleventh Circuit,
`whose judgment is sought to be reviewed, is reported
`at 14 F.4th 1242 (11th Cir. 2021) and is reprinted in
`the separate Appendix to this Petition.
`
`The prior opinion of the United States District
`
`Court for the Northern District of Georgia, entered
`June 6, 2020, is unreported, and is reprinted in the sep-
`arate Appendix to this Petition.
`--------------------------------- ♦ ---------------------------------
`
`STATEMENT OF JURISDICTION
`
`The judgment of the court of appeals was entered
`
`on September 28, 2021. The jurisdiction of this court is
`invoked pursuant to 28 U.S.C.A. § 1254(1).
`--------------------------------- ♦ ---------------------------------
`
`
`
`
`

`

`2
`
`CONSTITUTIONAL AND
`STATUTORY PROVISIONS INVOLVED
`
`This case involves the First Amendment to the
`
`Constitution of the United States which provides as
`follows:
`
`Congress shall make no law respecting an es-
`tablishment of religion or prohibiting the free
`exercise thereof; or abridging the freedom of
`speech, or of the press; or the right of the peo-
`ple peaceably to assemble, and to petition the
`Government for a redress of grievances.
`
`This case also involves Section 1 of the Fourteenth
`
`Amendment to the Constitution of the United States
`which provides as follows:
`
`All persons born or naturalized in the United
`States, and subject to the jurisdiction thereof,
`are citizens of the United States and of the
`State wherein they reside. No State shall
`make or enforce any law which shall abridge
`the privileges or immunities of citizens of the
`United States; nor shall any State deprive any
`person of life, liberty, or property, without due
`process of law; nor deny to any person within
`its jurisdiction the equal protection of the
`laws.
`
`
`
`--------------------------------- ♦ ---------------------------------
`
`
`

`

`3
`
`STATEMENT OF THE CASE
`
`Shortly after the end of the Civil War,1 an event
`
`known as The Old Soldiers Day Parade began to be
`held on an annual basis in Alpharetta, Georgia, to
`honor Confederate veterans of that war, but the parade
`was discontinued circa 1928.2 The City of Alpharetta
`resumed the Parade in 1952 after a group of citizens
`made it known that they wanted to recognize local war
`veterans. Every year since 1952, the City of Alpharetta
`has sponsored the event which is staged on the public
`streets of the municipality.
`
`The 67th Annual Old Soldiers Day Parade was
`
`held on August 3, 2019. On its website, the City de-
`scribed the parade “as a way to celebrate and honor all
`war veterans, especially those from Alpharetta, who
`have defended the rights and freedoms enjoyed by eve-
`ryone in the United States of America.” According to
`the City’s announcement, “The goal of this parade is to
`celebrate American war veterans and recognize their
`service to our country.” The City’s advertisement iden-
`tified the “City of Alpharetta and American Legion
`Post 201” as being “hosts [of ] the Annual Old Soldiers
`Day Parade.” Although the Legion was involved, the
`City was the Parade’s primary financial sponsor, and it
`
`1 While there are a number of names used to identify the con-
`
`flict of 1861 through 1865, including the War of the Rebellion and
`the War Between the States, Petitioners will be referring to it as
`the Civil War throughout this petition.
`2 It was shortly after the end of the First World War that the
`
`surviving Confederate Veterans opened the parade to the Na-
`tion’s newest veterans, those of the Great War.
`
`
`
`

`

`4
`
`was responsible for all of its costs (approximately
`$28,400).
`
`Any private organization which wanted to partici-
`
`pate in the event was required to apply to the City. The
`application itself identified the theme of the Parade:
`“The American Legion—A Century of Service.” The ap-
`plication form included logos of both the Legion and
`the City, along with other information. Applicants were
`instructed to mail or fax the application to the “Parade
`Marshal” at “American Legion Post 201 c/o City of Al-
`pharetta Special Events,” and it listed government
`mailing and email addresses. The final decision about
`whether to permit an entity’s participation in the Pa-
`rade was made by the City.
`
`Plaintiff Richard Leake completed an application
`
`on behalf of the Roswell Mills Camp Sons of Confeder-
`ate Veterans, of which he was a member. The applica-
`tion asked for a detailed description of the Sons of
`Confederate Veterans’ float. Plaintiff described the en-
`try as being a “[t]ruck pulling trailer with participants
`holding unit flags.” The application also asked appli-
`cants to “write a description of what you would like to
`say about your group or organization as you pass the
`Reviewing Stand.” Plaintiff wrote that the group would
`say that the Sons of Confederate Veterans is an “organ-
`ization dedicated to preserving the memory of our an-
`cestors who served in the War Between the States and
`ensuring that the Southern view of that conflict is
`preserved.” The application required that applicants
`agree to “abide by all rules and regulations set forth by
`
`

`

`5
`
`the event organizers in the Old Soldiers Day Parade.”
`Plaintiff signed the application without qualification.
`
`The next day, James Drinkard, the Assistant City
`
`Administrator, sent a letter to Plaintiff in response to
`his application “following approval from Mayor Gil-
`vin.” In the letter, Drinkard reiterated that the purpose
`of the Parade is to “unite our community” to “cele-
`brat[e] American war veterans,” and that, in the light
`of that purpose, “there is cause to question the appro-
`priateness of participation by an organization devoted
`exclusively to commemorating and honoring Confeder-
`ate soldiers.” Drinkard’s letter went on to state “that
`the Confederate Battle Flag has become a divisive
`symbol that a large portion of our citizens see as sym-
`bolizing oppression and slavery.” In the City’s view, this
`was “unacceptable.” The letter concluded that the City
`would adhere to its decision, as supported by the
`Mayor and the City Council, to not allow the Confeder-
`ate Battle Flag to be displayed in the Old Soldiers Day
`Parade. As an alternative, the City offered to allow the
`Sons of Confederate Veterans to participate in the Pa-
`rade “absent the Confederate Battle Flag.” The Sons of
`Confederate Veterans would be required to agree not
`to do anything “that would detract from the event goal
`of uniting our community for the purpose of celebrat-
`ing American war veterans.” Drinkard informed Plain-
`tiff that “the City of Alpharetta [would] approve [his]
`application” if he were to agree to these conditions.
`
`Three days before the Parade, Plaintiffs filed suit
`
`against Leake and other City officials, including the
`Mayor, in order to invoke their right to free speech
`
`

`

`6
`
`under the First and Fourteenth Amendments. Plain-
`tiffs sought monetary damages for the violation of
`their rights, as well as equitable relief in the form of a
`temporary restraining order, a preliminary injunction,
`and a permanent injunction, so that they could partic-
`ipate with the Confederate Battle Flag in the upcom-
`ing Parade and in future parades. On the day before
`the Parade, the district court reserved ruling on the
`motion for a temporary restraining order and declined
`to issue an injunction. The Parade went ahead as
`planned, without the participation of the Sons of Con-
`federate Veterans, whose sympathizers instead flew
`the Confederate Battle Flag along the side of the Pa-
`rade route rather than be subjected to viewpoint cen-
`sorship.
`
`After the Mayor and City Council formally re-
`
`solved “that the City of Alpharetta shall no longer
`sponsor or financially support future Old Soldiers Day
`Parades,” the City moved for summary judgment. The
`district court later granted summary judgment for the
`City on the ground that the Parade constituted govern-
`ment speech.
`
`Plaintiffs appealed, and a panel of the United
`
`States Court of Appeals for the Eleventh Circuit af-
`firmed the decision of the district court.
`--------------------------------- ♦ ---------------------------------
`
`
`
`
`

`

`7
`
`REASONS FOR GRANTING THE WRIT
`
`The present case is not one in which Petitioners
`
`seek the court to grant its writ of certiorari for the pur-
`pose of advancing a novel theory of constitutional in-
`terpretation; nor is it one in which Petitioners advance
`arguments in support of repudiating established con-
`stitutional jurisprudence. Instead, Petitioners seek a
`writ of certiorari in order to afford the court the oppor-
`tunity of clarifying the meaning and the parameters of
`the public forum doctrine, as well as distinguishing it
`from the articulation and application of the maxim
`that when a government chooses to speak that it is the
`sole arbiter of the content and message of such speech.
`--------------------------------- ♦ ---------------------------------
`
`
`
`
`

`

`8
`
`ARGUMENT
`1. The District Court and Eleventh Circuit
`Court of Appeals erred when applying the
`“Government Speech” doctrine to limit the
`speech of private citizens and organiza-
`tions participating in government spon-
`sored parades on the basis of flags which
`such participants wish to display in an ob-
`jective historical context, which occur on
`public streets and are open to all partici-
`pants that have submitted proper applica-
`tions, in violation of the First Amendment
`to the United States Constitution.
`A. The District Court and the Circuit
`Court of Appeals failed to take into ac-
`count the factors enunciated in Walker
`v. Texas Division, Sons of Confederate
`Veterans, Inc. for determining whether
`actions of the City of Alpharetta consti-
`tuted government speech, and such
`failure caused those courts to ignore in
`toto the constitutional doctrine which
`provides blanket protection for the
`speech which Petitioners sought to
`communicate.
`
`The First Amendment provides in relevant part
`
`that “Congress shall make no law . . . abridging the
`freedom of speech.” U.S. Const. amend. I. This personal
`right which is embodied in the fabric of American citi-
`zenship is protected against State abridgment by the
`Fourteenth Amendment. Gitlow v. New York, 268 U.S.
`652, 666 (1925).
`
`

`

`9
`
`The First Amendment works as a shield to protect
`
`private 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 govern-
`ment to speak for them. “[T]he Free Speech Clause of
`the First Amendment restricts government regulation
`of private speech; it does not regulate government
`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.” Id. at 467–468. This prerogative on
`the part of government entities includes “choosing not
`to speak” and “speaking through the . . . removal” of
`speech that the government disapproves. Ark. Educ.
`Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998).
`
`“[I]n the realm of private speech or expression,
`
`government regulation may not favor one speaker over
`another.” Rosenberger v. Rector and Visitors of Univ. of
`Va., 515 U.S. 819, 828 (1995). Because characterizing
`speech as government speech “strips it of all First
`Amendment protection” under the Free Speech Clause,
`Walker v. Texas Division, Sons of Confederate Veterans,
`Inc., 576 U.S. 200, 220 (2015) (Alito, J., dissenting), a
`court should tread lightly in applying the government
`speech label to an action undertaken by the govern-
`ment.
`
`This court has not articulated a precise test for
`
`separating government speech from private speech,
`but its recent decision in Walker concluded that the
`
`

`

`10
`
`specialty license plates for motor vehicles in Texas con-
`stituted government speech is illustrative of the man-
`ner in which the issue should be analyzed.
`
`The analysis of the Eleventh Circuit in interpret-
`
`ing Walker to bring this case within the purview of gov-
`ernment speech must fail because the panel utterly
`failed to consider the factors enunciated in Walker and
`such failure caused that court to ignore in toto the con-
`stitutional doctrine which provides blanket protection
`for the speech which Petitioners sought to articulate.
`The present case is not about government speech; in-
`stead, it is a case which requires application and un-
`derstanding of the public forum doctrine.
`
`In Walker, the Supreme Court considered a free
`
`speech claim brought by the Texas Division of the Sons
`of Confederate Veterans, challenging Texas’ decision to
`reject SCV’s request for the state to issue a specialty
`license plate displaying the organization’s name and a
`depiction of a confederate flag. Walker, 576 U.S. at 203–
`204. Walker is authoritative on the facts presented in
`that case, but it does not control the outcome of the
`present case because of significant factual and legal
`distinctions.
`
`The Texas State Motor Vehicles Board may “create
`
`new specialty license plates on its own initiative or on
`receipt of an application from a” nonprofit entity seek-
`ing to sponsor a specialty plate. Tex. Transp. Code Ann.
`§§ 504.801(a), (b). A nonprofit must include in its ap-
`plication “a draft design of the specialty license plate.”
`43 Tex. Admin. Code § 217.45(i)(2)(C). The relevant
`
`

`

`11
`
`statute says that the Board “may refuse to create a new
`specialty license plate” for a number of reasons; for ex-
`ample, “if the design might be offensive to any member
`of the public . . . or for any other reason established by
`rule.” Tex. Transp. Code Ann. § 504.801(c). The Texas
`statutory scheme specifically provides that final au-
`thority over the design and content of specialty license
`plates, other than those specifically authorized by the
`Texas legislature, rests with the Board.
`
`In upholding the right of the State of Texas to con-
`
`trol the content of messages articulated on its license
`plates, this court identified three distinct factors in or-
`der to determine if Texas had engaged in government
`speech.
`
`First, “the history of license plates” suggests “they
`
`long have communicated messages from the States” in
`order to urge action, to promote tourism, to tout local
`industries, and to commemorate historically notewor-
`thy events. Walker, 576 U.S. at 211–212. Such mes-
`sages have been conveyed by graphics and slogans
`since the early twentieth century, and Texas approved
`specialty license plates “for decades.” Id. Second, rea-
`sonable observers would conclude that Texas “agree[s]
`with the message displayed” on specialty license plates
`due to their purpose and design. Id. at 212–213. Each
`Texas license plate is a government article serving the
`governmental purposes of vehicle registration and
`identification. The governmental nature of the plates
`is clear from their faces by the placement of the name
`“TEXAS” in large letters at the top of every plate.
`Texas issues the plates, regulates their disposal, and
`
`

`

`12
`
`owns the designs displayed thereupon. Moreover, the
`State requires Texas vehicle owners to display license
`plates on every motor vehicle operated upon the public
`highways of the state. The license plates constitute a
`governmental issued and required means of identifica-
`tion. As a practical matter, the issuers of means of
`identification control all aspects of their display, ap-
`pearance, and any messages communicated by them
`other than to identify the bearer thereof. Summum,
`555 U.S. at 471. “Persons who observe” designs on IDs
`“routinely—and reasonably—interpret them as con-
`veying some message on the [issuer’s] behalf.” Walker,
`576 U.S. at 212.
`
`Third, Texas exercised “direct control over the
`
`messages” on specialty license plates. Id. Under the
`governing regulations, the Texas Department of Motor
`Vehicles Board “must approve every specialty plate de-
`sign proposal,” and Texas dictates “the design, type-
`face, color, and alphanumeric pattern for all license
`plates,” Id. (quoting 43 Tex. Admin. Code § 504.005(a)).
`This final approval authority allows Texas to reserve
`to itself the decisions of how to present itself and its
`constituency.
`
`These three factors taken together established
`
`that the specialty license plates were government
`speech. The three-pronged analysis employed in
`Walker provides a guide for courts to determine if a
`specific government action constitutes government
`speech; however, it does not mandate an inflexible
`rule of constitutional doctrine that any governmental
`
`

`

`13
`
`participation in an action necessarily implicates the
`government speech doctrine.
`
`The decision of the Eleventh Circuit in the present
`
`case is fatally flawed because the grounding of the
`three-pronged test of Walker, as well as the specific
`context of the Walker decision, was ignored in favor of
`a fallacious attempt to cast this proceeding as one
`which implicates the government speech doctrine.
`
`First, the history of the Alpharetta parade tends
`
`to establish that it was never intended or understood
`as communicating a specific message from the city. The
`parade has its origins in the period of time after the
`end of the Civil War when an event known as The Old
`Soldiers Day Parade began to be held on an annual ba-
`sis in Alpharetta to honor Confederate Civil War vet-
`erans before being discontinued around 1928. Prior to
`being discontinued, the surviving Confederate Veter-
`ans opened the parade to veterans of the First World
`War. The event resumed in 1952 after a group of citi-
`zens made it known that they wanted to recognize local
`war veterans, and it has been an annual event con-
`ducted on the public streets of the municipality for the
`purpose of extending such recognition.3 The parade
`
`
`3 Under Federal law, the term “veteran” is defined to include
`
`persons who “served for ninety days or more in the active military
`or navel service during the Civil War.” See 38 U.S.C. § 1532
`(2018). The Congress of the United States also defines and grants
`the status and benefits of being an American “veteran” to any per-
`son “who served in the military or naval forces of the Confederate
`States of America during the Civil War[.]” 38 U.S.C. § 1501
`(2018).
`
`
`

`

`14
`
`originated and resumed as a direct result of ac-
`tions and decisions undertaken by the citizens of
`Alpharetta, not as a consequence of a decision
`made by the municipal government. While the rec-
`ord establishes that the city publicl