Leake v. Drinkard

• Decision Date: 28 September 2021
• Docket Number: No. 20-13868,20-13868
• Citation: 14 F.4th 1242
• Parties: Richard LEAKE, Michael Dean, Plaintiffs-Appellants, v. James T. DRINKARD, In his personal capacity and official capacity as Assistant City Administrator of City of Alpharetta, Georgia, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

14 F.4th 1242

Richard LEAKE, Michael Dean, Plaintiffs-Appellants,

v.James T. DRINKARD, In his personal capacity and official capacity as Assistant City Administrator of City of Alpharetta, Georgia, Defendant-Appellee.

No. 20-13868

United States Court of Appeals, Eleventh Circuit.

Filed: September 28, 2021

Timothy Kyle King, Hodges McEachern & King, Walker Lawrence Chandler, Law Office of Walker L. Chandler, Peachtree City, GA, for Plaintiffs-Appellants.

John V. Burch, Michael David Stacy, Bovis Kyle Burch & Medlin, LLC, Atlanta, GA, for Defendant-Appellee.

Before William Pryor, Chief Judge, Lagoa, Circuit Judge, and Schlesinger,^* District Judge.

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, 135 S.Ct. 2239, 192 L.Ed.2d 274 (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 parade 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 government 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. The City resumed the Parade in 1952 after a small group of residents wanted to recognize local war veterans. 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 promoted 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 everyone 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 determining which private organizations would be permitted to participate in the Parade. That process began with an application. And the application identified the theme of the Parade: "The American Legion - A Century 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 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 Parade.

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 Veterans'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 description 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 application 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 Parade." 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 approval from Mayor Gilvin." In the letter, Drinkard reiterated that the purpose of the Parade is to "unite our community" to "celebrat[e] American war veterans," and that, in the light of that purpose, "there is cause to question the appropriateness of participation by an organization 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 ... Parade and the service of our American war veterans." (Emphasis added.) The letter continued, "the City of Alpharetta will maintain its decision, supported unanimously 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 Confederate Battle Flag." The Sons of Confederate Veterans would also have to agree not to do anything "that would detract from the event goal of uniting our community 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 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 participate 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 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 Confederate Veterans, whose sympathizers instead flew the Confederate battle flag along the side of the Parade route.

Later that year, the Mayor and City Council formally resolved "that the City of Alpharetta shall no longer sponsor or financially support future Old Soldiers Day Parades." The City then moved for summary judgment, arguing that the Parade constituted government 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 future. The district court later granted summary judgment 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 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 "deprived 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 constituted 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 "personal" right is now protected against State abridgment by the Fourteenth Amendment. Gitlow v. New York , 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (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 government" on their right to speak freely, Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc. , 515 U.S. 557, 566, 115 S.Ct. 2338, 132 L.Ed.2d 487 (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 government speech.’ " Mech , 806 F.3d at 1074 (quoting Pleasant Grove City v. Summum , 555 U.S. 460, 467, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ). That is, "[a]...