throbber
App. 1
`
`[PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
`
`-----------------------------------------------------------------------
`No. 20-13868
`-----------------------------------------------------------------------
`
`Plaintiffs-Appellants,
`
`RICHARD LEAKE,
`MICHAEL DEAN,
`
`versus
`JAMES T. DRINKARD,
`In his personal capacity and official capacity as
`Assistant City Administrator
`of City of Alpharetta, Georgia,
`
`Defendant-Appellee.
`-----------------------------------------------------------------------
`Appeal from the United States District Court
`for the Northern District of Georgia
`D.C. Docket No. 1:19-cv-03463-WMR
`-----------------------------------------------------------------------
`
`(Filed Sep. 28, 2021)
`Before WILLIAM PRYOR, Chief Judge, LAGOA, Circuit
`Judge, and SCHLESINGER,* District Judge.
`
`
`* Honorable Harvey Schlesinger, United States District
`
`Judge for the Middle District of Florida, sitting by designation.
`
`

`

`App. 2
`
`WILLIAM PRYOR, Chief Judge:
`
`In Walker v. Texas Division, Sons of Confederate
`
`Veterans, Inc., the Supreme Court clarified that,
`“[w]hen [the] government speaks, it is not barred by
`the Free Speech Clause from determining the content
`of what it says.” 576 U.S. 200, 207 (2015). Some of the
`Sons of Confederate Veterans did not get the message.
`A member, Richard Leake, applied to participate in the
`Old Soldiers Day Parade, a pro-American veterans pa-
`rade funded and organized by the City of Alpharetta,
`Georgia. The City informed Leake that the Sons of
`Confederate Veterans would be allowed to participate,
`but only if it agreed not to fly the Confederate battle
`flag. Not content with this offer, Leake and Michael
`Dean, another Son, filed a civil-rights action against
`City officials, 42 U.S.C. § 1983, alleging that the City
`violated their constitutional rights to speak freely
`under the First and Fourteenth Amendments. The
`district court held that the Parade constituted gov-
`ernment speech and entered summary judgment
`against the Sons. Because governments are not obliged
`under the First and Fourteenth Amendments to permit
`the presence of a rebellious army’s battle flag in the
`pro-veterans parades that they fund and organize, we
`affirm.
`
`
`
`I. BACKGROUND
`The Old Soldiers Day Parade began after the Civil
`
`War in the City of Alpharetta to honor veterans of that
`war, but the Parade was discontinued after a few years.
`
`

`

`App. 3
`
`The City resumed the Parade in 1952 after a small
`group of residents wanted to recognize local war veter-
`ans. The City has sponsored the Parade every year
`since then.
`
`The 67th Annual Old Soldiers Day Parade was
`
`held on August 3, 2019. On its website, the City pro-
`moted 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.” “The goal of
`this parade,” according to the City’s advertisement, “is
`to celebrate American war veterans and recognize
`their service to our country.” The City’s advertisement
`identified the “City of Alpharetta and American Legion
`Post 201” as “hosts [of ] the Annual Old Soldiers Day
`Parade.” Although the Legion was involved, the City
`was the Parade’s primary financial sponsor and was
`responsible for almost all its costs (about $28,400). By
`contrast, the Legion did not financially contribute any
`significant amount.
`
`This controversy arose from the process for deter-
`
`mining which private organizations would be permit-
`ted to participate in the Parade. That process began
`with an application. And the application identified the
`theme of the Parade: “The American Legion—A Cen-
`tury of Service.” The application form included logos of
`both the Legion and the City. It instructed applicants
`to mail or fax the application to the “Parade Marshal”
`at “American Legion Post 201 c/o City of Alpharetta
`Special Events” and listed government mailing and
`email addresses. The final decision about whether to
`
`

`

`App. 4
`
`permit an entity’s participation in the Parade was
`made by the City based on the message the Mayor and
`City Council wanted the Parade to communicate. The
`Legion did not determine who participated in the Pa-
`rade.
`
`On the Monday after Independence Day in 2019,
`
`Richard Leake completed an application on behalf of
`the Roswell Mills Camp Sons of Confederate Veterans,
`of which he is a member. The application asked for a
`detailed description of the Sons of Confederate Veter-
`ans’s float. Leake wrote that there would be a “[t]ruck
`pulling trailer with participants holding unit flags.”
`The application also asked applicants to “write a de-
`scription of what you would like to say about your
`group or organization as you pass the Reviewing
`Stand.” Leake wrote that they would say 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.” The appli-
`cation required that the Sons of Confederate Veterans
`agree to “abide by all rules and regulations set forth by
`the event organizers[, the City of Alpharetta and the
`American Legion Post 201,] in the Old Soldiers Day Pa-
`rade.” Leake signed the application.
`
`The following day, James Drinkard, the Assistant
`
`City Administrator, sent a letter to Leake in response
`to his application. The letter was sent “following ap-
`proval from Mayor Gilvin.” In the letter, Drinkard re-
`iterated that the purpose of the Parade is to “unite our
`community” to “celebrat[e] American war veterans,”
`
`

`

`App. 5
`
`and that, in the light of that purpose, “there is cause to
`question the appropriateness of participation by an or-
`ganization devoted exclusively to commemorating and
`honoring Confederate soldiers.” (Internal quotation
`marks omitted.)
`
`Drinkard’s letter stated “that the Confederate
`
`Battle Flag has become a divisive symbol that a large
`portion of our citizens see as symbolizing oppression
`and slavery.” In the City’s view, that divisiveness would
`draw “the spotlight away from the goals of the . . . Pa-
`rade and the service of our American war veterans.”
`(Emphasis added.) The letter continued, “the City of
`Alpharetta will maintain its decision, supported unan-
`imously by Mayor Gilvin and the City Council, to not
`allow the Confederate Battle Flag to be flown in the
`Old Soldiers Day Parade.”
`
`The City offered to allow the Sons of Confederate
`
`Veterans to participate in the Parade “absent the Con-
`federate Battle Flag.” The Sons of Confederate Veter-
`ans would also have to agree not to do anything “that
`would detract from the event goal of uniting our com-
`munity for the purpose of celebrating American war
`veterans.” Drinkard informed Leake that “the City of
`Alpharetta [would] approve [his] application” if he
`were to agree to these conditions.
`
`Three days before the Parade, Leake and Dean
`
`sued Drinkard and other City officials, including
`Mayor Gilvin, for violating their right to free speech
`under the First and Fourteenth Amendments. The
`Sons sought monetary damages for the violation of
`
`

`

`App. 6
`
`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 upcoming
`Parade and in future ones. See 42 U.S.C. § 1983. On the
`day before the Parade, the district court reserved rul-
`ing 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 Confederate Veterans, whose sympathizers in-
`stead flew the Confederate battle flag along the side of
`the Parade route.
`
`Later that year, the Mayor and City Council for-
`
`mally resolved “that the City of Alpharetta shall no
`longer sponsor or financially support future Old Sol-
`diers Day Parades.” The City then moved for summary
`judgment, arguing that the Parade constituted govern-
`ment speech and that the claim for injunctive relief
`was now moot because of the City’s formal resolution
`to discontinue its sponsorship of the Parade in the fu-
`ture. The district court later granted summary judg-
`ment for the City on the ground that the Parade
`constituted government speech.
`
`
`
`II. STANDARD OF REVIEW
`“We review a summary judgment de novo.” Mech v.
`
`Sch. Bd., 806 F.3d 1070, 1074 (11th Cir. 2015) (internal
`quotations marks omitted). Summary judgment is
`appropriate in this case if, after viewing the record
`in the light most favorable to the Sons, id., “there is no
`
`

`

`App. 7
`
`genuine dispute as to any material fact” such that the
`City “is entitled to judgment as a matter of law,” FED.
`R. CIV. P. 56(a).
`
`
`
`III. DISCUSSION
`For the Sons to prevail in this civil-rights action,
`
`42 U.S.C. § 1983, they must show that they were “de-
`prived of a federal right by a person acting under color
`of state law.” Griffin v. City of Opa-Locka, 261 F.3d
`1295, 1303 (11th Cir. 2001). The City admits that it
`acted under color of state law when it prohibited the
`Sons from displaying the Confederate battle flag at the
`Parade. The parties dispute whether the City deprived
`the Sons of their right to speak freely under the First
`and Fourteenth Amendments. The City argues that
`there was no deprivation because the Parade consti-
`tuted the City’s speech; the Sons argue the contrary.
`We agree with the City.
`
`The First Amendment provides in relevant part
`
`that “Congress shall make no law . . . abridging the
`freedom of speech.” U.S. Const. amend. I. This “per-
`sonal” right is now protected against State abridgment
`by the Fourteenth Amendment. Gitlow v. New York,
`268 U.S. 652, 666 (1925). But whether that personal
`right has been abridged depends crucially on whose
`speech is at issue.
`
`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,
`
`

`

`App. 8
`
`566 (1995), not as a sword to compel the government
`to speak for them. In other words, “[t]he Free Speech
`Clause of the First Amendment ‘restricts government
`regulation of private speech; it does not regulate gov-
`ernment speech.’ ” Mech, 806 F.3d at 1074 (quoting
`Pleasant Grove City v. Summum, 555 U.S. 460, 467
`(2009)). That is, “[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.” Summum, 555 U.S. at 467–68 (inter-
`nal quotation marks omitted).
`
` When the government speaks, it may refuse to en-
`dorse or freely remove speech of which it disapproves.
`Mech, 806 F.3d at 1074. And “[p]arades are . . . a form
`of expression” that involve “marching to make a
`point.” Hurley, 515 U.S. at 568. It follows that, if the
`Parade was the City’s speech, the City was free to con-
`dition the Sons’ participation in the Parade on their
`not displaying the Confederate battle flag; the Sons’
`“case could not [then] proceed under the Free Speech
`Clause.” Cambridge Christian Sch., Inc. v. Fla. High
`Sch. Athletic Ass’n, 942 F.3d 1215, 1230 (11th Cir.
`2019). In a word, if the Parade was government speech,
`the Sons lose. Mech, 806 F.3d at 1074.
`
` What makes speech government speech? Although
`we lack a “precise test,” id., there are three factors we
`use to distinguish government speech from private
`speech: history, endorsement, and control, Cambridge,
`942 F.3d at 1230. “The first factor—history—directs us
`to ask whether the type of speech under scrutiny has
`traditionally ‘communicated messages’ on behalf of the
`
`

`

`App. 9
`
`government.” Id. at 1232 (quoting Walker, 576 U.S. at
`211). The second factor—endorsement—asks whether
`“observers reasonably believe the government has en-
`dorsed the message.” Mech, 806 F.3d at 1076. “Finally,
`the control factor asks whether the relevant govern-
`ment unit ‘maintains direct control over the messages
`conveyed’ through the speech in question.” Cambridge,
`942 F.3d at 1234 (quoting Walker, 576 U.S. at 213).
`
`These factors are neither individually nor jointly
`
`necessary for speech to constitute government speech.
`See Mech, 806 F.3d at 1075–76. But a finding that all
`evidence government speech will almost always result
`in a finding that the speech is that of the government.
`See, e.g., Walker, 576 U.S. at 210–14; Dean v. Warren,
`No. 19-14674, slip op. at 33–38 (11th Cir. 2021). And all
`three factors support the City’s position that the Pa-
`rade constituted its speech.
`
`
`
`A. History
`The history of military parades in general, and
`
`this Parade in particular, weighs in favor of finding
`that the Parade was government speech. Just as
`“[g]overnments have long used monuments to speak
`to the public” and “commemorate military victories
`and sacrifices,” Summum, 555 U.S. at 470, so too gov-
`ernments of all kinds have from time immemorial
`used parades to communicate the same kinds of mes-
`sages. Examples are legion. Take one: The Roman tri-
`umphs were “famous parades through the city of Rome
`that celebrated Rome’s greatest victories against its
`
`

`

`App. 10
`
`enemies.” MARY BEARD, THE ROMAN TRIUMPH 1 (2009).
`And they also involved celebrating war veterans. Id.
`(“To be awarded a triumph was the most outstanding
`honor a Roman general could hope for.”).
`
`Since then, governments, up to and including the
`
`United States, have used triumph parades to celebrate
`their militaries. For example, in 1899 “the victories of
`Admiral George Dewey in the Spanish-American War
`were celebrated with a triumphal parade in New York”
`and “a special triumphal arch was built . . . at Madison
`Square.” Id. at 2. So the particular medium of commu-
`nication at issue here—a parade—is one that, since
`“ancient times,” Summum, 555 U.S. at 470, “has tradi-
`tionally ‘communicated messages’ on behalf of the
`government,” Cambridge, 942 F.3d at 1232 (quoting
`Walker, 576 U.S. at 211). And the “kind of speech” con-
`veyed through that medium—celebration of the mili-
`tary—is one that was “often closely identified in the
`public mind with the government.” Id. (internal quota-
`tion marks omitted).
`
`The history of this Parade especially fits within
`
`the general history of government-sponsored parades.
`The City has sponsored the Parade every year since
`1952. The Parade’s central purpose was to honor and
`celebrate American war veterans. The 2019 Parade’s
`purpose and message were the same. And the City re-
`mained its only significant financial sponsor. So history
`establishes both that the medium used here and the
`message conveyed through it are ones traditionally as-
`sociated with governments. It follows that this factor
`favors the City. See Mech, 806 F.3d at 1075–76 (“A
`
`

`

`App. 11
`
`medium that has long communicated government mes-
`sages is more likely to be government speech. . . .”).
`
`
`
`B. Endorsement
`The City expressly “endorsed the [Parade’s] mes-
`
`sage,” which “strongly suggests that the [Parade] [is]
`government speech.” Id. at 1076. The City publicly ad-
`vertised and promoted the 2019 Parade on its website,
`where it identified itself and the Legion as co-hosts.
`The City publicly identified the “goal of th[e] parade”
`as the celebration of “American war veterans” and the
`recognition of “their service to our country.” The City
`publicly endorsed the sentiment that “all war veterans,
`especially those from Alpharetta” should be “cele-
`brate[d] and honor[ed].” And the City publicly adver-
`tised that the Parade would open with a performance
`by the City Band. “[O]bservers [would have] reasona-
`bly believe[d] the government ha[d] endorsed the [Pa-
`rade’s] message” because the City expressly and
`publicly did so. Mech, 806 F.3d at 1076; see also Dean,
`No. 19-14674, slip op. at 35 (concluding that “there is
`no doubt that Kennesaw State University endorses the
`message conveyed by its cheerleading team” because of
`express statements on the athletics department’s web-
`site evidencing that cheerleaders “are expected to con-
`vey a message of which the university approves”).
`
`The Legion’s involvement does not undermine this
`
`conclusion. To be sure, Drinkard asserted in an email
`that the Parade “is largely viewed as the Legion’s
`event.” But he admitted in the same sentence that “the
`
`

`

`App. 12
`
`event is put on as a partnership between the American
`Legion and the City.” (Emphasis added.) That part-
`nership was a matter of public knowledge. And a
`partnership “suggests that the [Legion] has a close
`relationship with the [City]—i.e., that the [Legion] is
`an ‘associate’ or is ‘engaged together in the same activ-
`ity.’ ” Mech, 806 F.3d at 1076 (quoting Partner, Oxford
`English Dictionary (online ed.)). So both the City and
`the Legion publicly came together to endorse the same
`message. Indeed, “partnership” is an understatement.
`Although the Legion was publicly identified as a co-
`host of the Parade, it did not financially contribute to
`it in any significant amount. The City, by contrast, cov-
`ered almost all the Parade costs, including those asso-
`ciated with the event space, public safety personnel,
`barricades, and vendors to service the Parade.
`
`The Sons contend that the Parade’s being “spon-
`
`sored with both private and public money” is sufficient
`to make it private speech and that “the City is using
`its position as a majority-sponsor of the parade to reg-
`ulate private speech.” But neither the Legion’s involve-
`ment nor the involvement of private organizations as
`participants in the Parade itself establishes that the
`City did not endorse the messages communicated by
`the Parade. “The fact that private parties take part in
`the design and propagation of a message does not ex-
`tinguish the governmental nature of the message,”
`Walker, 576 U.S. at 217, especially if, as here, the gov-
`ernment is organizing and funding the event through
`which the message is communicated. Cities “typi-
`cally do not” organize and fund events that contain
`
`

`

`App. 13
`
`“messages with which they do not wish to be associ-
`ated.” Id. at 212 (alteration adopted) (internal quota-
`tion marks omitted). And “because [the speech] occurs
`at a government-organized event” in the form of the
`Parade, “we can safely assume that the organizers . . .
`generally would not allow . . . messages they did[ not]
`want to be associated with.” Cambridge, 942 F.3d at
`1233. It is obvious, then, that observers would inter-
`pret a parade promoted, organized, and funded by
`the government “as conveying some message on [its]
`behalf.” Walker, 576 U.S. at 212 (internal quotation
`marks omitted).
`
`
`
`C. Control
`The final factor—control—strongly supports that
`
`the Parade was the City’s speech. The evidence estab-
`lishes that the City “maintains direct control over the
`messages conveyed” in the Parade. Id. at 213. Partici-
`pation in the Parade depended on submission of an
`application to the City. The application expressly re-
`quired applicants to describe the kinds of messages
`they intended to convey at the Parade. “[F]inal ap-
`proval authority” over the application was exercised
`by the City based on the message the Mayor and City
`Council wanted the Parade to communicate. Johanns
`v. Livestock Mktg. Ass’n, 544 U.S. 550, 561 (2005); see
`also Mech, 806 F.3d at 1078 (holding that the control
`factor “strongly suggests that the banners are govern-
`ment speech” because school principals were obliged
`to approve every banner before they were placed on
`
`

`

`App. 14
`
`school fences). The Legion, by contrast, did not deter-
`mine who participated in the Parade.
`
`All these facts establish that the control factor
`
`weighs in the City’s favor. The City “effectively con-
`trolled the messages conveyed” by requiring applicants
`to describe the messages they intended to communi-
`cate and then by “exercising final approval authority
`over their selection” based on those descriptions.
`Walker, 576 U.S. at 213 (alterations adopted) (internal
`quotation marks omitted). When the City exercised
`this control as the Parade’s organizer by excluding or-
`ganizations with whose speech the City disagreed, the
`City was speaking. See Rumsfeld v. F. for Acad. & In-
`stitutional Rts., Inc., 547 U.S. 47, 64 (2006) (“[A] parade
`organizer’s choice of parade contingents . . . is . . . in-
`herently expressive.”).
`
`To be sure, once an applicant is admitted, it may
`
`renege on its express promise on the application form
`to “abide by all rules and regulations set forth by the
`event organizers.” But the government need not “con-
`trol every word or aspect of speech in order for the
`control factor to lean toward government speech.”
`Cambridge, 942 F.3d at 1235–36. If the reverse were
`true, any speech through private parties would involve
`yielding control. The government-speech doctrine does
`not require omnipotence. See id. (“[C]omplete control
`is not required.”). And, as we have repeatedly stressed,
`the City was free “to express its views” by receiving “as-
`sistance from private sources for the purpose of deliv-
`ering a government-controlled message.” Summum,
`555 U.S. at 468. The City decided which private groups
`
`

`

`App. 15
`
`to admit or exclude based on the consistency of the
`groups’ characterizations of their intended speech on
`the City’s application form with the messages the
`City wanted to communicate through the Parade.
`And the City required that participants agree in ad-
`vance to abide by “all rules and regulations” that the
`City imposed. Either exclusion or advance precondi-
`tions would be adequate control. Because all three fac-
`tors point in the same direction, we conclude that the
`Parade was the City’s speech.
`
` Matal v. Tam, 137 S. Ct. 1744 (2017), is not to the
`contrary. In Matal, the Supreme Court held that the
`content of registered trademarks is not government
`speech in part because the government would then be
`“babbling prodigiously and incoherently,” expressing at
`once “contradictory views.” Id. at 1758. The Sons rely
`heavily on this reasoning. They argue that, if the Pa-
`rade were the City’s speech and the Sons participated
`even without displaying the Confederate battle flag,
`the City would be expressing contradictory views by
`“simultaneously endors[ing] opposing sides of the
`same wars, such as the Union and the Confederacy.”
`
`There is nothing to this argument. Matal’s reason-
`
`ing about contradictory speech followed other consider-
`ations in the light of which the Court concluded that
`“it is far-fetched to suggest that the content of a regis-
`tered mark is government speech.” Id. The Court ex-
`plained that the government “does not edit marks
`submitted for registration”; “an examiner may not
`reject a mark based on the viewpoint that it appears
`to express” (save the exception at issue in that case);
`
`

`

`App. 16
`
`“an examiner does not inquire whether any viewpoint
`conveyed by a mark is consistent with Government
`policy”; if the mark meets viewpoint-neutral require-
`ments, “registration is mandatory”; and the placement
`of the mark on the principal register is ordinarily not
`reviewed by any official higher than the examiner. Id.
`The opposite facts exist in this case: The City asked for
`a detailed description of the intended speech so that it
`could “edit” the speech. The City exercised the discre-
`tion to reject any organization based on whether the
`viewpoint it intended to express was consistent with
`the City’s views. And the ultimate decision was made
`by the highest City authorities. This appeal is not
`Matal.
`
`In any event, “[e]ven if we agreed that the protec-
`
`tion of the government-speech doctrine must be for-
`feited whenever there is inconsistency in the message,
`we would nonetheless accord the protection here” be-
`cause the City’s message was consistent. Johanns, 544
`U.S. at 561 n.5. The fallacy in the Sons’ argument is the
`implicit assumption that all views associated with all
`participants would be the City’s speech if the Parade
`were the City’s speech. But that assumption is false.
`“By accepting” a float, the City “does not necessarily
`endorse the specific meaning that any particular donor
`sees in” it. Summum, 555 U.S. at 476–77.
`
`Consider an example on which the Sons rely: The
`
`City allowed the “Democrat Party of Fulton County [to]
`participate.” In the light of the Parade’s central mes-
`sage—honoring veterans—observers could reason-
`ably infer from their participation not that the City
`
`

`

`App. 17
`
`endorsed everything for which the Democrats stand,
`but that the City has brought together diverse “private
`parties” to “propagat[e]” one common message with
`which all participating parties agreed. Walker, 576 U.S.
`at 217. And one could reasonably infer that there was
`nothing on the Democratic Party’s float that the City
`thought was incompatible with the values it was seek-
`ing to promote through the Parade. See Hurley, 515
`U.S. at 574 (“Rather like a composer, the [organizer]
`selects the expressive units of the parade from po-
`tential participants, and though the score may not
`produce a particularized message, each contingent’s
`expression in the [organizer’s] eyes comports with
`what merits celebration on that day.”).
`
`Far from communicating an inconsistent message,
`
`the City sought to keep its message consistent by
`excluding the Confederate battle flag. As Drinkard
`explained to Leake, the City’s view was that the Con-
`federate battle flag symbolizes oppression and slavery,
`and its inclusion was inconsistent with its goal of unit-
`ing the community. The public purpose of the Parade
`was to celebrate the service of veterans who “defended
`the rights and freedoms enjoyed by everyone.” (Em-
`phasis added.) The City was free to exercise its right
`to exclude the Confederate battle flag from its Pa-
`rade on those bases or any others. See Walker, 576
`U.S. at 206 (upholding Texas’s decision to exclude the
`Confederate battle flag from its license plates based
`on Texas’s determination that “a significant portion
`of the public associate the confederate flag with
`
`

`

`App. 18
`
`organizations advocating expressions of hate” (inter-
`nal quotation marks omitted)).
`
`Finally, “[a]bsurd results would follow if the First
`
`Amendment protected” the Sons’ right to fly the Con-
`federate battle flag in the City-organized Parade.
`Dean, No. 19-14674, slip op. at 37. By the Sons’ logic,
`anytime the government seeks to organize an event by
`bringing private parties together to communicate a
`message the government wants expressed, it must al-
`low the participation of other parties that will express
`the opposite message. For example, if after ratification
`of the Bill of Rights the federal government funded and
`organized a parade commemorating our stunning vic-
`tory over Great Britain, it would have had to allow par-
`ticipation of Union Jack-waving loyalists if it allowed
`participation of Gadsden flag-waving patriots. The
`Constitution does not require such an absurdity. See
`Summum, 555 U.S. at 480 (rejecting the proposition
`that “[e]very jurisdiction that has accepted a donated
`war memorial may be asked to provide equal treat-
`ment for a donated monument questioning the cause
`for which the veterans fought”); see also People for the
`Ethical Treatment of Animals, Inc. v. Gittens, 414 F.3d
`23, 30 (D.C. Cir. 2005) (“No one could plausibly argue
`that an Inauguration Parade has to have balance, or
`that the losing Presidential candidate must—if he re-
`quests—be allowed to have a float of his own.”). And
`with good reason: It “would lead almost inexorably to”
`the end of government-sponsored parades, a medium
`of communication governments have used from time
`immemorial. Summum, 555 U.S. at 480.
`
`

`

`App. 19
`
`The three-factor analysis establishes that, when
`
`governments organize and sponsor a parade to com-
`municate a message, the parade is their speech from
`which they may include or exclude participants at will.
`“Since every participating unit affects the message
`conveyed by the . . . organizers” of a parade, neither the
`government nor private parties may compel them “to
`alter the expressive content of their parade.” Hurley,
`515 U.S. at 572–73. This principle applies no matter
`whether the organizer is the government or a private
`party. A government cannot compel a private parade
`organizer to admit groups of whose views the private
`organizer disapproves. Id. at 574–75 (holding that the
`State could not compel a private parade organizer to
`admit a gay, lesbian, and bisexual advocacy group be-
`cause the “parade’s organizers” had a right to choose
`not “to propound a particular point of view”). And we
`hold that a private organization cannot compel a gov-
`ernment parade organizer to admit groups of whose
`views the government disapproves.
`
`“To the [Sons of Confederate Veterans], [the Con-
`
`federate battle flag] is said to evoke the memory of
`their ancestors and other soldiers who fought for the
`South in the Civil War.” Walker, 576 U.S. at 234 (Alito,
`J., dissenting). But to many others, “it symbolizes slav-
`ery, segregation, and hatred.” Id. That sentiment is not
`surprising.
`
`Southern governments began prominently dis-
`
`playing the Confederate battle flag, not soon after their
`defeat by the United States in 1865, but in the 1950s
`and 1960s “in symbolic defiance of changing laws that
`
`

`

`App. 20
`
`threatened” state-compelled racial segregation. Moore
`v. Bryant, 205 F. Supp. 3d 834, 843 (S.D. Miss. 2016).
`“In early 1948, as President Truman pressed for Civil
`Rights legislation, some Southern Democrats called for
`an anti-Truman, segregationist electoral bloc in the
`South.” Chris Springer, The Troubled Resurgence of the
`Confederate Flag, 43 HIST. TODAY, no. 6, June 1993, at
`7, 8. Segregationist Democrats “appropriated the Con-
`federate flag as their symbol” and “[f ]or their political
`and racial revolt” against federal civil-rights legisla-
`tion, “they mustered behind them all the iconography
`of the Confederacy.” Id. “In 1956, Georgia redesigned
`its flag to include the Confederate battle emblem,” and
`both South Carolina and Alabama raised the flag at
`their state capitols in 1962 and 1963, respectively, at
`the height of their attempts to preserve the institution
`of racial segregation. Moore, 205 F. Supp. 3d at 843–44.
`As a result, “the Dixiecrat campaign greatly strength-
`ened the links between the flag and white suprema-
`cism.” Springer, supra, at 8.
`
`The City recognized the obvious fact that the flag
`
`“has become a divisive symbol that a large portion of
`our citizens see as symbolizing oppression and slav-
`ery.” Although Southern governments once flew the
`flag to promote those unjust causes, they cannot now
`be compelled to do so by private parties when they
`have made the decision to promote just causes instead.
`We hold that the Parade was the City’s speech. It fol-
`lows that the Sons of Confederate Veterans “cannot
`force [the City] to include a Confederate battle flag” in
`
`

`

`App. 21
`
`the veterans parades it funds and organizes. Walker,
`576 U.S. at 219.
`
`
`
`IV. CONCLUSION
` We AFFIRM the judgment in favor of the City.
`
`
`
`

`

`App. 22
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`
`RICHARD LEAKE and
`MICHAEL DEAN,
`
`
`
` Plaintiffs,
`v.
`JAMES T. DRINKARD,
`in his personal capacity
`and official capacity as
`Assistant City Administrator
`of City of Alpharetta,
`Georgia, et al.
`
`
`
` Defendants.
`
`
`ORDER
`
`CIVIL ACTION FILE NO.:
`1:19-cv-3463-WMR
`(Filed Jun. 26, 2020)
`
`For the past seventy years, the City of Alpharetta
`
`has honored war veterans each August with its annual
`Old Soldiers Day Parade (the “Parade”). The Parade
`began after the Civil War and originally honored Con-
`federate soldiers. Upon the resurgence of the Parade
`in 1952 after World War II, the honorees of the Parade
`were extended beyond Civil War veterans to include
`veterans of other wars. Importantly, in addition to the
`expansion of the Parade’s honorees, society has evolved
`since the Parade’s formation and no longer holds the
`same degree of affinity for Confederate emblems and
`
`

`

`App. 23
`
`flags that previously existed.1 Additionally, groups
`have used and continue to use Confederate flags to
`symbolize viewpoints and conduct that is otherwise
`considered offensive today.
`
` With this historical context in mind, the present
`dispute concerns the City of Alpha

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