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`Eleventh Circuit.
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`No. 96-8149.
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`James Andrew COLEMAN, Plaintiff-Appellant,
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`v.
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`Zell MILLER, Governor, State of Georgia, Defendants-Appellees,
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`Georgia Division, Sons of Confederate Veterans, et al., Proposed Intervenors.
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`July 21, 1997.
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`Appeal from the United States District Court for the Northern District of Georgia. (No. 1:94-cv-
`1673-ODE), Orinda D. Evans, Judge.
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`Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior Circuit Judges.
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`PER CURIAM:
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`James Coleman brought this action to enjoin the flying of the Georgia state flag over
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`Georgia's state office buildings. Coleman, an African-American, alleges that the flying of the
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`Georgia flag, which incorporates the Confederate battle flag emblem, violates his constitutional
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`rights to equal protection and freedom of expression. The district court determined that Coleman
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`had failed to produce sufficient evidence to maintain his claims and granted appellees' motion for
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`summary judgment. Because we likewise conclude that the record contains inadequate factual
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`support for appellant's constitutional claims, we affirm.
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`I.
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`In 1879, Georgia adopted as its first official flag a variation of the Confederate national flag
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`consisting of three horizontal red and white stripes and one blue vertical band.1 The General
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`Assembly added the state seal to this flag in 1902, and this combination of the Confederate national
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`flag emblem and the Georgia state seal remained the official flag of Georgia until the current flag
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`design was adopted in 1956. The 1956 flag statute replaced the Confederate national flag emblem
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`with the Confederate battle flag emblem, which is commonly referred to as the St. Andrew's Cross.
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` 1Prior to 1879, Georgia militia units sometimes carried an unofficial state flag that consisted
`of the state seal emblazoned in the center of a blue background.
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`Ga.Code Ann. § 50-3-1. The red and blue St. Andrew's Cross, which the Confederate troops carried
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`during the Civil War, now covers two-thirds of the Georgia flag, and the state seal containing the
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`words "Wisdom, Justice and Moderation" covers the remaining third.2
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`The current flag design was adopted during a regrettable period in Georgia's history when
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`its public leaders were implementing a campaign of massive resistance to the Supreme Court's
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`school desegregation rulings.3 In the 1956 state of the State address, then-Governor Marvin Griffin
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`declared that "there will be no mixing of the races in public schools, in college classrooms in
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`Georgia as long as I am Governor." Later, while addressing the States' Rights Council of Georgia
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`at the beginning of the 1956 legislative session, Governor Griffin announced that "the rest of the
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`nation is looking to Georgia for the lead in segregation." The 1956 General Assembly passed
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`several bills and resolutions as part of its resistance package, including the Interposition Resolution
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`declaring the Supreme Court's school desegregation rulings in Brown I and Brown II null and void.
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`Introduced as the General Assembly was considering the flag bill, the Interposition Resolution
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`passed both houses over a single dissent.
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`As many of Georgia's politicians and citizens openly resisted the Supreme Court's
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`desegregation rulings, increasing numbers of white Southerners began expressing renewed interest
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`in their Confederate heritage. It was in this environment of open hostility to the Supreme Court's
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`civil rights rulings and of developing interest in Confederate history that the Georgia General
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`Assembly acted to redesign its state flag. It chose as an official state symbol an emblem that
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`historically had been associated with white supremacy and resistance to federal authority.
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`The debate over the flag legislation in the two houses of the General Assembly focused on
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`the upcoming Civil War centennial, the cost of changing the flag, whether the designer owned a
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`copyright in the flag, and whether, because the Confederate battle flag belonged to all Southern
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` 2The different versions of Georgia's flag are depicted in Appendix A.
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` 3In 1954, the Supreme Court declared racially segregated public schools unconstitutional, see
`Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ("Brown I "),
`and, a year later, the Court ordered that the desegregation of public schools proceed "with all
`deliberate speed." Brown v. Board of Education, 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed.
`1083 (1955) ("Brown II ").
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`states, it was an appropriate symbol for the state flag of Georgia. The bill passed the Senate with
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`three dissents and passed the House with 32 dissents and 61 abstentions. Several members of the
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`1956 General Assembly maintain that factors such as segregation and white supremacy played no
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`role in the decision to adopt the current flag design. One member of the 1956 Assembly, however,
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`insists that the flag was adopted as a symbol of resistance to integration.4 At least one scholar of this
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`period has concluded that the flag legislation was enacted as a symbol of resistance to the Supreme
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`Court's civil rights rulings.5
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`Roughly forty years after the passage of the flag statute, appellant brought this action under
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`42 U.S.C. § 1983 alleging, inter alia, that the continued presence of the Georgia flag and its
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`Confederate battle flag emblem atop and within Georgia's public buildings unconstitutionally
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`infringes on his rights to equal protection and freedom of expression. Coleman contends that the
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`flag's Confederate symbol, which is often used by and associated with hate groups such as the Ku
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`Klux Klan, inspires in him fear of violence, causes him to devalue himself as a person, and sends
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`an exclusionary message to Georgia's African-American citizens. He also asserts that the flag's use
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`of the Confederate symbol forces him to adopt a message—namely, the endorsement of
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`discrimination against blacks—that he finds morally offensive.
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` After conducting two hearings to evaluate Coleman's claims, the district court concluded
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`that he had failed to present sufficient specific factual evidence to support them and granted
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`appellees' motion for summary judgment. We review the district court's grant of summary judgment
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`de novo, applying the same legal standard as the district court. Martin v. Commercial Union Insur.
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`Co., 935 F.2d 235, 238 (11th Cir.1991). Reviewing the record evidence in the light most favorable
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` 4James Mackay, who was a member of the General Assembly in 1956, testified that "there
`was a movement across the South: "Let's adopt the Confederate battle flag as a symbol of
`resistance to the law of this land.' " (R7:27).
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` 5Dan Carter, a professor of Southern History at Emory University testified that "[b]y the mid-
`1950's, the Confederate battle flag had become the single most important symbol of white
`supremacy and defiant opposition to federally mandated laws on non-discrimination." Professor
`Carter concluded that "the well-known symbolic role of the flag at the time makes it difficult for
`me to imagine that this action was anything but an attempt to bolster the morale of those
`Georgians struggling to maintain white supremacy." (R2:31).
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`to appellant, we must determine if there are any genuine issues of material fact that preclude
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`judgment as a matter of law for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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`249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In order to survive summary judgment, appellant
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`must present more than "mere allegations." Id. at 248, 106 S.Ct. at 2510. He must come forward
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`with specific factual evidence sufficient to establish the existence of each element essential to his
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`case on which he will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 320, 106 S.Ct.
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`2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(e).
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`II.
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` Appellant first contends that the continued display of the Georgia state flag violates the
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`Equal Protection Clause of the Fourteenth Amendment. Because, as appellant concedes, the flag
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`and the 1956 statute adopting the current design are facially neutral, he must satisfy a two-pronged
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`test in order to maintain an equal protection claim. He must first demonstrate that the flying of the
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`Georgia flag produces disproportionate effects along racial lines, and then must prove that racial
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`discrimination was a substantial or motivating factor behind the enactment of the flag legislation.
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`See Hunter v. Underwood, 471 U.S. 222, 225-26, 105 S.Ct. 1916, 1919-20, 85 L.Ed.2d 222 (1985);
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`Lucas v. Townsend, 967 F.2d 549, 551 (11th Cir.1992); East-Bibb Twiggs Neighborhood Ass'n v.
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`Macon Bibb Planning & Zoning Comm'n, 896 F.2d 1264, 1266 (11th Cir.1989).
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`In order to demonstrate disproportionate impact along racial lines, appellant must present
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`specific factual evidence to demonstrate that the Georgia flag presently imposes on African-
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`Americans as a group a measurable burden or denies them an identifiable benefit. For example, in
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`Hunter, the Supreme Court held unconstitutional a provision of the Alabama Constitution that
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`disenfranchised voters who had been convicted of crimes "involving moral turpitude." In finding
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`the requisite discriminatory impact, the Court relied on the fact that in certain Alabama counties at
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`the time of the litigation, "blacks are even by the most modest estimates at least 1.7 times as likely
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`as whites to suffer disenfranchisement" under the challenged section. Hunter, 471 U.S. at 228, 105
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`S.Ct. at 1920 (quoting Underwood v. Hunter, 730 F.2d 614, 620 (11th Cir.1984)); see also United
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`States v. Byse, 28 F.3d 1165, 1169 (11th Cir.1994) (discussing racial disparities in sentencing).
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`After carefully reviewing the record, and drawing all inferences in the light most favorable
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`to appellant, we find no evidence of a similar discriminatory impact imposed by the Georgia flag.
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`Appellant relies on his own testimony to demonstrate a disproportionate racial effect. He testified
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`that the Confederate symbol in the Georgia flag places him in imminent fear of lawlessness and
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`violence and that an African-American friend of his, upon seeing the Georgia flag in a courtroom,
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`decided to plead guilty rather than litigate a traffic ticket. This anecdotal evidence of intangible
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`harm to two individuals, without any evidence regarding the impact upon other African-American
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`citizens or the comparative effect of the flag on white citizens, is insufficient to establish
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`"disproportionate effects along racial lines." See Hunter, 471 U.S. at 227, 105 S.Ct. at 1920.
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`Coleman also offered the affidavit of another witness who testified that, in his opinion, the flying
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`of the flag promotes violence against blacks and continues to represent a symbol of Georgia's efforts
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`against integration. This mere allegation, without any accompanying support, also is not sufficient
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`to demonstrate a disproportionate racial effect.6
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`We addressed a similar argument in NAACP v. Hunt, 891 F.2d 1555 (11th Cir.1990), in
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`which a group of African-American plaintiffs challenged the flying of the Confederate flag above
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`the Alabama capitol dome. We concluded that plaintiffs had failed to prove discriminatory impact.
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`For a unanimous panel, Judge Johnson wrote: "[T]here is no unequal application of state policy;
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`all citizens are exposed to the flag. Citizens of all races are offended by its position." Id. at 1562.7
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`Like the plaintiffs in Hunt, Coleman has presented "no specific factual proof" in support of his claim
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` 6We recognize that a government action may in some instances violate the Constitution
`because it encourages private discrimination. See Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct.
`1627, 1634, 18 L.Ed.2d 830 (1967); Creek v. Village of Westhaven, 80 F.3d 186, 193-94 (7th
`Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 180, 136 L.Ed.2d 120 (1996). There is no evidence in
`the record of this case, however, that connects the Georgia flag to private discrimination or racial
`violence.
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` 7In Hunt, the court first determined that the "entire claim is precluded by res judicata." 891
`F.2d at 1561. Nevertheless, the court continued to examine all of the claims on the merits. Id. at
`1562 ("Because of the controversial concerns raised in this case, it is important that all issues be
`laid to rest on the merits."). Because the ensuing discussion of the flag controversy does not
`appear to have been necessary to the disposition of the case, we conclude that it is properly
`construed as dicta. See Whiting v. Traylor, 85 F.3d 581, 584 n. 4 (11th Cir.1996) (characterizing
`Hunt's malicious prosecution discussion as dicta). It goes without saying, however, that we
`consider Judge Johnson's discussion of the flag issue to be instructive.
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`that flying the Confederate symbol causes disproportionate racial impact. See id. at 1563.
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`We recognize that the Georgia flag conveys mixed meanings; to some it honors those who
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`fought in the Civil War and to others it flies as a symbol of oppression. But because the Confederate
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`battle flag emblem offends many Georgians, it has, in our view, no place in the official state flag.
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`We regret that the Georgia legislature has chosen, and continues to display, as an official state
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`symbol a battle flag emblem that divides rather than unifies the citizens of Georgia. As judges,
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`however, we are entrusted only to examine the controversies and facts put before us. Based on the
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`record presented to us in this case, we hold that appellant has failed to produce sufficient facts to
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`allow a reasonable trier of fact to conclude that the state has violated his equal protection rights. We
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`therefore conclude that the district court properly granted appellees summary judgment on his equal
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`protection claim.8
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`III.
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` Appellant next argues that the Georgia flag violates his First Amendment rights by
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`compelling him to endorse a message that he finds morally objectionable. The First Amendment
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`prohibits governments from forcing an individual to be "an instrument for fostering public adherence
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`to an ideological point of view he finds unacceptable." Wooley v. Maynard, 430 U.S. 705, 711, 97
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`S.Ct. 1428, 1434, 51 L.Ed.2d 752 (1977) (holding that state could not inflict criminal penalties on
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`citizens who covered up license plate motto). Similarly, a government cannot force individuals
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`affirmatively to acknowledge a message with which they disagree. See Board of Education v.
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`Barnette, 319 U.S. 624, 640, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943) (prohibiting forced salute
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`and pledge of flag).
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` Appellant has demonstrated no such governmental compulsion in this case. He has pointed
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`to no government action that "requires affirmation of a belief and an attitude of mind." Barnette,
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`at 632, 63 S.Ct. at 1183. For example, there is no evidence that Georgia requires appellant to carry
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` 8Having concluded that appellant has failed to demonstrate that the Georgia flag presently
`imposes a discriminatory racial effect, we need not decide whether discrimination against
`African-Americans was a motivating factor in the flag bill's passage. See Palmer v. Thompson,
`403 U.S. 217, 224, 91 S.Ct. 1940, 1945, 29 L.Ed.2d 438 (1971) (race-motivated legislation
`violates Constitution only when it "affect[s] blacks differently from whites").
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`or display the flag or to participate in ceremonies honoring the flag. The mere fact that appellant
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`may on some occasions be required to enter public buildings that fly the Georgia flag does not
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`infringe upon his First Amendment rights because entering public buildings does not manifest any
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`particular attitude or belief and does not associate appellant with the flag's message. We therefore
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`conclude that the district court properly granted appellees summary judgment on appellant's First
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`Amendment claim. See Hunt, 891 F.2d at 1566 (rejecting First Amendment challenge to flying of
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`Confederate flag because "[t]he government of Alabama does not compel its citizens to carry or post
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`the flag themselves, or to support whatever cause it may represent").
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`Accordingly, we AFFIRM the district court's order granting appellees' motion for summary
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`IV.
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`judgment.
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`CA(97)3307,SIZE-1 PAGE,TYPE-PI