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In the case of Sons of the Southern Cross v. Hurst, 2022 U.S. Dist. LEXIS 14219 (W.D. Ark. 1/26/2022), a Confederate heritage organization claimed a new “American flags only” rule for an annual Christmas parade had violated its First Amendment rights.

For many years, the Old Town Merchants Association (TOTMA) in the City of Van Buren, Arkansas, had applied for and received a permit from the City of Van Buren (the City) to hold an evening Christmas parade on Main Street in downtown Van Buren. Historically, parade participants constructed parade floats and drove them down a portion of Main Street as parade attendees lined the street. TOTMA would place temporary roadblocks on cross streets and Van Buren police officers directed traffic away from and around the parade.

Plaintiff James Bible had lived in Crawford County, Arkansas, for approximately 15 or 20 years. He is the founder, president and national commander of Plaintiff Sons of the Southern Cross, Inc., a national Confederate heritage organization headquartered in Crawford County. Plaintiffs had participated in the TOTMA Christmas parade for approximately 10 years. During that time, Plaintiffs regularly (and perhaps always) flew a Confederate battle flag from their float. In January 2020, TOTMA received a permit from the City for its 2020 Christmas parade.

The City added the parade to the calendar of events on its website to be held on December 12, 2020. As various public health responses, such as masking and physical distancing, were deployed in 2020 in response to the coronavirus (COVID-19) pandemic, TOTMA decided to hold a “reverse Christmas parade,” in which floats would remain stationary along the Main Street parade route and parade attendees would drive down Main Street to view the stationary floats in the evening.

TOTMA board member Lindsay Dodson acted as parade organizer and chair and unilaterally drafted rules that parade participants agreed to follow as part of their applications. Later in the year and closer to the time of the parade, Dodson contacted Mayor Joseph Hurst for confirmation that the reverse parade should not be canceled in light of ongoing coronavirus (COVID-19) related restrictions. Dodson also contacted the Van Buren Police Department to discuss differences in the logistics of traffic direction for a reverse parade.

Among the rules created by Dodson for TOTMA’s 2020 reverse Christmas parade was a prohibition on floats displaying any flag other than the flag of the United States of America. Bible heard these rules read aloud at a Crawford County Republican Committee meeting before Plaintiffs submitted their application for the 2020 reverse parade. The application also identified TOTMA member Joy Holman as a parade organizer and listed her contact information, but Holman had no decision-making authority over TOTMA’s parade. Apart from her duties as a point of contact, Holman only helped Dodson place floats on Main Street.

Because Plaintiffs previously had displayed a Confederate flag on their float without issue, approximately one month before the parade, Bible’s daughter placed a call to Holman. During a phone conversation with Holman, she explained that Plaintiffs always had displayed their Confederate flag in the past, mentioned the 2020 “American flags only” rule, and asked whether Plaintiffs would be allowed to display the Confederate flag from their float during TOTMA’s 2020 reverse parade.

Holman was familiar with the Sons of the Southern Cross organization and told Hickerson she was fine with the Confederate flag and with Plaintiffs displaying the Confederate flag from their float. Subsequently, one of the treasurers for Sons of the Southern Cross filled out and submitted an application for the parade.

Bible, his family and members of Sons of the Southern Cross then spent time and money preparing their float. The float displayed silhouettes of two American Civil War soldiers kneeling on either side of a fabric-draped cross. Below the cross was a manger and a lit sign reading, “Under One God.” Tents were erected on either side of the float behind the soldier silhouettes. One tent was labeled “US” and an American flag was posted behind it. The other tent was labeled “CS” and a Confederate flag was posted behind it. Plaintiffs intended their float to communicate that Union soldiers and Confederate soldiers both worshipped one God and that Confederate soldiers and the Confederate flag were not evil.

Eight days before the parade, Bible called Holman to, again, communicate Plaintiffs’ intent to display the Confederate flag from their float. Holman told Bible that Sons of the Southern Cross had participated in the parade for a decade without issue and flying the Confederate flag would be fine.

After one of the calls with Bible or his daughter, Holman told Dodson about the conversation. Dodson explained that the rule was clear in the application that only the American flag could be displayed on a float. Holman did not call Plaintiffs back to correct her misstatement of the rules.

On the morning of TOTMA’s reverse parade, Plaintiffs set up their float on Main Street. After setting up the float, Bible and those who assisted him in setting up Plaintiffs’ float left. In the early afternoon, a few hours before the reverse parade was set to begin, a member of the public drove through the parade route and noticed the Confederate flag displayed on Plaintiffs’ float.

This member of the public was bothered by the Confederate flag’s presence in a Christmas parade and, believing it was divisive, contacted Mayor Hurst with her complaint using Facebook Messenger. Mayor Hurst responded that he understood her concerns, but the parade was organized and run by TOTMA. A Facebook message was then sent to TOTMA. Dodson saw the complaint, but she did not respond. The member of the public then messaged Mayor Hurst to tell him TOTMA had not responded. A bit later, Mayor Hurst responded to her by saying, “I just talked to TOTMA, and this is supposed to be removed . . . no flags.”

That same afternoon, Holman was in Dodson’s store on Main Street. Dodson was busy managing last-minute parade details, including cancellations due to COVID-19, when she received the member of the public’s Facebook complaint. Matt Dodson (a member of both TOTMA and the Van Buren City Council, and Lindsay Dodson’s husband) entered the store holding his phone and told his wife that “Mayor Hurst’s been getting multiple calls and texts on his business and personal phone about the Confederate flag being displayed, and we needed to have them take it down.”

Lindsay Dodson walked down to Plaintiffs’ float to confirm the presence of the Confederate flag and direct Plaintiffs to remove it, but no one was there. She then returned to her store to deal with other parade business. Dodson’s husband called Mayor Hurst to tell him TOTMA was having the Confederate flag removed.

At some point, another TOTMA board member, Daniel Perry, went to Dodson’s store to offer to help with the parade. In addition to being one of three at-large board members of TOTMA, Perry is a lieutenant with the Van Buren Police Department. He was not wearing his uniform that day but was on duty overseeing the two police officers the City assigned to direct parade-affected traffic.

Dodson had pulled Plaintiffs’ signed application form that displayed the parade rules and was leaving her store to return to the float to talk to Plaintiffs regarding the flag’s presence on their float. She told Perry that Mayor Hurst had received complaints that the Confederate flag was being flown on Plaintiffs’ float even though TOTMA’s rules prohibited it, and asked Perry to go have Plaintiffs take it down.

Perry went to the float and, again, no one was there, so he returned to Dodson, got Plaintiffs’ phone number from their application, and called. Bible’s wife answered and Perry introduced himself as a TOTMA board member and as a Van Buren police officer. Bible’s wife brought the phone to Bible, and Perry, again, introduced himself as a member of TOTMA and a Van Buren police officer. Perry then explained Mayor Hurst was receiving complaints about the Confederate flag, and Plaintiffs either needed to take the flag down or remove the float, or it would be towed. Bible refused and hung up.

After some discussion with his family, Bible then called Perry back and offered to remove the Confederate battle flag and replace it with the first national flag of the Confederate States of America — a flag Bible believed few would recognize or view as divisive. Perry rejected the compromise and, again, told Bible to remove the flag or the float or the float would be towed, and if it could not be, the parade would be shut down.

Ultimately, the decision was made to remove the float. Plaintiffs slowly towed the float down Main Street to the courthouse, where they stopped and disassembled those parts of the float designed only for display, rather than towing. Plaintiffs then towed the trailer to various locations around Van Buren to publicly display what they still could of the float before returning it home for full disassembly.

The following Monday, Bible called Holman to ask why Plaintiffs had been ordered out of the parade. Holman told Bible TOTMA had to do what Mayor Hurst told them to do.

Flag Flying Protected Expression

As noted by the federal district court: “The flying of a flag is expressive conduct protected from governmental regulation by the First Amendment to the United States Constitution”:

The Court for decades has recognized the communicative connotations of the use of flags. In many of their uses, flags are a form of symbolism comprising a primitive but effective way of communicating ideas, and a shortcut from mind to mind.

As described by the court, the City claimed “Plaintiffs’ flying of the Confederate flag was not expressive conduct that could be protected by the First Amendment” because, in the context of this particular case, “there was not a great likelihood viewers would understand Plaintiffs’ intended message.” The federal district court rejected this argument.

Citing “the well-settled standard used to evaluate expressive conduct,” the court acknowledged that it “does not matter whether parade attendees understood Plaintiffs’ intended message.” According to the court, “a narrow, succinctly articulable message is not a condition of constitutional protection.” On the contrary, the court found the issue in this instance was whether “parade attendees would reasonably understand that Plaintiffs were communicating through the use of the Confederate flag, that Plaintiffs’ conduct was expressive.” Moreover, the court acknowledged that “a message may be delivered by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative.”

As characterized by the court, Plaintiffs’ intended message could be interpreted as “Confederate and Union soldiers worshipped the same deity and that Confederate soldiers and the Confederate flag were not evil, or instead believed Plaintiffs were communicating an intent to sow division or support white supremacy.”

Accordingly, the federal district court found Plaintiffs’ flying of the Confederate flag was “unquestionably expressive conduct protected from government restriction by the First Amendment to the Constitution.” That being said, the court also recognized TOTMA’s First Amendment right to make rules for their own private parade participants. The First Amendment would, therefore, not require TOTMA “to allow participants in its parade to engage in any expressive conduct they like.”

Section 1983 Claim

Turning to the substance of Plaintiffs’ claims, the federal district court cited 42 U.S.C. § 1983, which would allow governmental liability under federal civil rights law when a statute, ordinance, regulation, custom or usage deprives an individual of “any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Further, the court noted: “A municipality constitutes a person for purposes of § 1983 but is liable only when action pursuant to official municipal policy of some nature caused a constitutional tort.”

While 42 U.S.C. § 1983 and “the First Amendment guarantee of free speech guards against abridgment through state action alone,” the federal district court acknowledged the First Amendment “does not inhibit private restrictions on speech.” Within the context of this particular case, the federal district court would, therefore, find the City liable to Plaintiffs under § 1983 “only if the City, or a private person whose action may be fairly treated as that of the municipality itself, restricted Plaintiffs’ speech.”

Public/Private Nexus

According to the court, “Private action may be fairly attributed to a municipality only when there is a close nexus between the municipality and the challenged action”:

The one unyielding requirement is that there be a “close nexus” not merely between the state and the private party, but between the state and the alleged deprivation itself. 

In this particular instance, the court found “no dispute of fact that when TOTMA, through board member and parade organizer Lindsay Dodson, imposed the ‘American Flags only’ rule on the reverse Christmas parade…TOTMA did so solely as a private actor”:

TOTMA applied for a parade permit and the City granted the permit in January 2020, allowing TOTMA to block off a portion of Main Street to non-parade traffic...TOTMA established rules and reviewed applications for parade participation without input from the City. The City added the parade to its online calendar of events occurring in the City and sent police officers to control traffic around the parade area.

Under such circumstances, the federal district court held: “No reasonable juror could find that this conduct pervasively entwined the City and TOTMA such that it made TOTMA’s parade the City’s parade.” Similarly, the court could not find any indication of a “nexus, close or otherwise, between TOTMA’s decision to impose an ‘American flags only’ rule on its parade and the City’s decision to grant TOTMA a parade permit.”

City’s Role in Flag Removal

Under these circumstances, the primary legal issue before the federal district court was, therefore, whether TOTMA parade organizer Dodson was a “private actor” when she enforced TOTMA’s “American flags only” rule by asking Perry, a TOTMA member and City police officer, to “direct Plaintiffs to remove either the Confederate flag from their float or their float from the parade.” If Dodson was a private actor at the time, the federal district court would maintain that “neither the City nor TOTMA is liable to Plaintiffs.”

In so doing, the court recognized that “a municipality cannot compel private parade organizers to include speech in their parades,” and similarly, “it cannot compel them to exclude it.” As a result, the court found the City could be liable to Plaintiffs under § 1983 if TOTMA was compelled by the City to have Plaintiffs remove the flag or float. In addition, both the City and TOTMA could be liable under § 1983, “if the City was so pervasively entwined in TOTMA’s decision at the parade to remove Plaintiffs’ flag or Plaintiffs’ float that TOTMA’s conduct was fairly attributable to the City.”

Accordingly, to overcome the City’s motion for summary judgment and proceed to trial, Plaintiffs would have to demonstrate sufficient evidence in the pretrial record to show either compulsion by the City or pervasive entwinement of TOTMA with the City in the decision to remove Plaintiffs’ flag.

In the opinion of the federal district court, there was insufficient evidence in the pretrial record to indicate the City had compelled TOTMA to remove Plaintiffs’ flag or float from the parade. In particular, the court cited testimony from Dodson that she had made her decision before she ever learned that Mayor Hurst had received public complaints about Plaintiffs’ Confederate Flag and had indicated “we needed to have them take it down.” Dodson had further testified that she saw a complaint on TOTMA’s Facebook page, which prompted her to ask Plaintiffs to abide by parade rules and she “believed they had agreed to and remove either their flag or their float.”

While Joy Holman had testified that she believed Mayor Hurst was ordering TOTMA to direct Plaintiffs to remove the flag, the court found Holman was “not a TOTMA decision-maker” whose subjective beliefs were “relevant to whether TOTMA perceived Mayor Hurst’s communication as compulsion.” In the opinion of the court, Lindsay Dodson was the “relevant TOTMA decision-maker” and there was no testimony to indicate Dodson “understood Mayor Hurst’s communication to be an order.”

Based on Holman’s opinion, Plaintiffs had claimed “TOTMA was compelled to obey because Mayor Hurst is ‘the director of our city’ and ‘in charge.’” The federal district court rejected this argument. In the opinion of the court, Holman’s opinion did not provide a rational basis to conclude TOTMA was required to obey Mayor Hurst:

There is no evidence that the laws of the City of Van Buren or the controlling documents for TOTMA require TOTMA to obey requests or commands from the Mayor about what flags are or are not allowed on a float in TOTMA’s parade.

Further, the federal district court acknowledged: “Private action is not converted into state action unless the state has compelled the act; mere acquiescence is not enough.”

As cited by the court, Dodson’s undisputed testimony indicated she had “decided, independently” of Mayor Hurst’s communication to have Plaintiffs remove their flag. Accordingly, the court found the record demonstrated “TOTMA board member and parade organizer Lindsay Dodson’s decision to exclude Plaintiffs’ flag or Plaintiffs’ float was the decision of a private actor and was not compelled by the City.”

City Parade Enforcement

Plaintiffs also had argued that “the City was so pervasively entwined with the enforcement of parade rules that TOTMA’s decision to have Plaintiffs remove their flag or float was fairly attributable to the City.” In so doing, Plaintiffs cited phone calls with Perry, in which he identified himself as a police officer with regard to enforcing the “American flags only” rule. During these calls, however, the court cited testimony indicating Perry was “not uniformed at the time he was enforcing the rule” and was “acting in his capacity as a TOTMA board member.” That being said, if Perry had “leaned on his authority as a police officer when he enforced the rule,” the court noted “a reasonable jury could find Perry was a state actor.”

Assuming Perry was a “state actor” under these circumstances, the federal district court, nevertheless, held Perry’s role in enforcing the private rule was still “not enough for official capacity liability against the City and TOTMA”:

Plaintiffs must also show that Perry’s enforcement of private rules as a state actor was pursuant to the City’s official policies or customs. They cannot do so. Again, it is undisputed that the City did not impose the “American flags only” rule, and it is not genuinely disputed that TOTMA was not compelled by the City to enforce TOTMA’s own rule.

As characterized by the federal district court, “Perry’s enforcement of a private rule was pursuant to the direct request of TOTMA, acting through Lindsay Dodson”:

This is a case where a parade participant was directed by the parade organizer to remove a flag from a float. Assuming still that Perry acted as a police officer and state actor when he directed Plaintiffs to remove their flag or their float, his conduct was no different than the conduct of a police officer being called to remove a trespasser... . [A] private party’s mere invocation of state legal procedures does not constitute state action.

Permit Did Not Regulate Speech

While “TOTMA had a permit from the City for a reverse parade,” the federal district court also found the parade permit did not compel “TOTMA’s decision about what speech its parade participants expressed during that parade.” Moreover, the federal district court found TOTMA’s decision to remove Plaintiffs’ flag or float from TOTMA’s parade was not “compelled by or fairly attributable to the City.” As a result, the court held Plaintiffs had failed to demonstrate the City had violated 42 U.S.C. § 1983 because the alleged deprivation of their Confederate flag message had not “resulted from the exercise of a right or privilege having its source in state authority.” The federal district court, therefore, granted the City’s motion for summary judgment and dismissed Plaintiffs lawsuit.

See also: “Free Speech and Public/Private Events,” James C. Kozlowski. Parks & Recreation. Apr. 2006. Vol. 41, Iss. 4.  and “Gay Pride Message Not Accommodated In City Parade Organized By Private Association,” James C. Kozlowski. Parks & Recreation. Sep. 1995. Vol. 30, Iss. 9; p. 28.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Law review articles archive (1982 to present)