warning may please the court michael t scott on behalf of the plaintiff appellant carlos moore i'd like to start today by talking about a case called briggs or says mississippi it's a case that helped with the very same plag issue in this case like this case the plaintiff there alleged that the mississippi flag constituted some sort of symbolic government speech like the plaintiff in this case the plaintiff in the briggs case alleged that the flag unconstitutional expressed a preference for one group of citizens over another the only difference was that in briggs case the plaintiff was a muslim objected to the flag on the basis that he believed it endors christianity that the the confederate battle flag portion of the flag of the mississippi flag somehow constituted a religious symbol a christian symbol to be precise and he objected to that  district court and this court proceeded to decide the case on the merits without any expression of concerns about standing the outcome in that case really can't be reconciled with the denial of standing in this case here the plaintiff correctly alleges as the fifth circuit court held in briggs that the message of that flag is not a religious message it's a secular message that's the allegation that's made here the allegation goes said and specifies there was no need to specify what the secular message was in the briggs case but here the allegation is the message is one of white supremacy that claim arises under  protection clause claim in the briggs case arose under the establishment clause but other than that difference there's really no way to reconcile those those two cases and it's not because the decision in briggs was wrong in fact if you look at the why isn't it just very simply it's not that there's a hierarchy it's not that the case in controversy requirement alters it is what's the text of the constitution and in one case the text present protects against government indorsing something so the establishment cost protects against the indorsement but the equal protection clause protects against unequal treatment so we have to look for different treatment well the language of the two clauses and i i would submit are not really that different that's the distinction in other words i guess put it differently do you have a single equal protection violation case based ever on government speech now you very candid to say no except for those two eleven circuit cases that happen to deal with the confederate flag they get there but they don't they did doesn't seem that did standing was it was contested there right there's no address well that that's correct this and it was  i agree that's those are interesting cases the those cases stand it was not contested they were equal protection claims in those cases and those plaintiffs you know they all lost all but about any equal protection case that fine standing based on stigma without an attendant finding of unequal treatment i don't think so your honor and the reason for this as you know is if you look at the the religious cases i know but those just seem like separate doctrines so if  focus just on equal protection there's a real dearth of case all to support your position well that ok so a complete absence of case law again with your argument but does your argument turn on incorporating standing from establishment clause it turns on there being an analogy that can be drawn there i think it has to be drawn but then it yes yes ok but you know this is to a large extent an issue of first impression when the government speaks in a way that  the means one racial group over another is not a violation of equal protection law it's more of a merit issue really mean that you can't you can't even cite a case where it was decided favorably on the merits based on speech alone rather than treatment but same even if we jump to marriage there doesn't seem that that's a valid equal protection theory the state cannot cite a single case where that theory has been rejected the whole notion of government speech is fairly a fairly new jurist credential concept as  being discussed and the reason there aren't equal protection cases out there where somebody says well does government speech violate the equal protection clause other than this flag you can't find government insi can't find government displays that expressly explicitly are designed to promote white supremacy work where do you find that other than in this plan mr pope authorities are very prone to putting crosses in their city insignias to putting up christmas displays so you have a lot of cases dealing with the standing to bring those challenges under the establishment clause you really don't have government agencies or cities or counties which openly endorse white supremacy it just doesn't happen that's why we don't have a case not because there are cases out there rejecting our position there just aren't any cases this case is is in many ways unique in one of the ways it's unique is that it is a government indorsement of white supremacy and right and i don't have to prove that a trial well but you drop back to an endorsement but that doesn't seem to be what the constitution is protecting against well it's the constitution is very broad equal protection clause says states shall not deny equal protection but there was  this gentleman works to your client has worked or does work as a state prosecutors cells he hasn't been to and if he if you can show or promotion deny to him or any legal benefit then he isn't getting equal protection of the law no one i don't think mississippi is saying they condone offensive speech that they're denying his feelings and that he feels offended it's just that the law doesn't say that's cognize simple to get into court well it doesn't say it isn't either citizens african american citizens who lived in mississippi absolutely it just doesn't happen what we have is this symbolic of the horsemen of the same thing find it interesting that the complaint  i'm looking at the third amended complaint the last one allowed i don't have the fourth amendment in front of me is a basically an equal protection class of one claim not seeking relief for himself and all other similarly situated a clause i agree on a better but there are there are numerous reasons why the establishment clause precedent should apply here you start with i would just to some extent all that i think i think in your br that i was very curious about that in your brief you say you're not raising claims of the thirteenth amendment right and that you're not claiming there is flag inspired racial violence you say that in your belief but what i mean no to let me finish counsel yes then in your reply brief you at six a you're not raising a question about equal the establishment clause you're simply showing it's an analogous situation so you know you seem to be in your brief saying well it should be persuasive but here you seem to be saying it's controlling the which is it well it is controlling in the sense that there is no principled no constitutional no logical basis to drive the suspension between a plaintiff who claims the state is demeaning me because of my race or the state is demeaning me because of my religion other than the exact wording of the gun well there are slightly different words but we also have the valley forge decision which says look when it comes to standing there's not some hierarchy of constitutional values there's not a sliding scale of standing and frankly if there were a sliding scale of standing it would kind of our favor not against us i mean the equal protection cla had as its core purpose as explained in the slaughterhouse cases very close in time to limit the fourteenth amendment was adopted that the very purpose was the protection of african americans to an able them to enjoy the full benefits of citizenship as full not second class citizens if you look at the establishment clause there was no concern about atheists whatsoever so if you're going to start saying well who are have standing of those two groups and atheists who complains about a cross silas city in seventy ad or an african american complains that the state is purposefully demeaning him for the purpose of promoting white supremacy who should have standing to object to that i think this living scale is clearly cuts in the favor of the african american plaintiff now i think it was judge taken to task about the fact  he's a mr morris a state prosecutor and i want to talk about that because the case law involving workplace exposure to the confederate flag very clearly establishes that workplace exposure even if it's sporadic even if the employer isn't endorsing it can constitute a cognizable injury in fact now you're getting over into titles of them yes you which you don't claim as a basis for this standing you keep you throw out these examples but judgments and so aptly pointed out you cannot cite one case to us that directly on point for your position that you have standing under the equal protection clause we call them what you claim is government speech that's correct try to but i'm trying to look at it from the perspective of what is an injury what is an injury alan the right is relevant here and difficult for your client to assert stigmatic injury well alan and then when you look at it to speaking of history you look at the sort of seminal equal protection cases loving the ones that both of you have cited those involved treatment the state would allow interracial couple to marry so it isn't as if this is a first impression suddenly now the problem exists it's always been there yet no court has ever recognized the standing description the outside of the establishment clause gone to but again a modern style a court that has rejected any there they just haven't been well the fact that no one's ever gotten into court implies that it hasn't been received well principle then in other words where you probably saw our court issued a decision really need to monuments that's government speech right and in that decision yesterday it highlighted that in new orleans sort of the robust democratic process and i think you describe or judge reeves does that around the country the use of this symbol has declined why isn't serge justice frankfurters each an advice that courts aren't thrown we should have a militant electorate that decides these issues why isn't that the trend that's occurring already well it is a trend that had a brick wall in mississippi unfortunate well it may have before now but here in the city of new orleans the political process came to its conclusion why isn't that the same process that the fact that a political process can sometimes maybe even often eliminate acts of discrimination doesn't mean that when the bay acts but it that that's that's assuming the fact that in dispute the government hasn't acted to deprive him of anything there is a symbol out there he declares vehemently is offensive the government has to drive mr more of a sense of dignity to labeling him a second class citizen it's the exact same injury that gives rise to standing the law is very different when it comes to schools schools are the only place where the law says flight must be flown in addition mississippi law says that students like mr gore's now six year old daughter in kindergarten must be taught that symbols such as the state's line carry messages that message must be respected when you think about the impact on children i have to go back to brown v board of education and i know yes there there were segregated schools and there was an impact but but remember the way brown v board was analyzed was the md the schools were indeed equal but there was no real concrete impact on black his versus white kids but the court said still the psychological impact of that stink dollars but they said our cases make clear that such injury accords a basis for standing only to those persons who are personally denied equal treatment by the challenge discriminatory conduct and i think that's the linchpin of this case is as has already been touched on here this morning mr moore's complaint was that he is being denied equal treatment and i think the other foundational principle of this case has been pointed out by the court already is the textual difference between the first and the fourteenth amendment so in the answer to the question posed in appellants brief about why there should be no principled or logical difference the answer to that is the difference is found in the text of the first in the fourteenth amendment and the interest through which each of those constitutional provisions  don't think the reasoning congruity in the fact that the briggs case turned on an establishment clause challenge so while stanley was not directly addressed or or written about or argued i think obviously implicit in that notion is when someone brings an  irresponsibly that stick to that wasn't analyzed or to remember that point yes i do not control in the airplane case i believe the ninth circuit a footnote also said there may be you know same same type of dicta certainly not expounded upon certainly not control in the circuit  i think certainly would be again given the nature and in purpose of the fourteenth amendment equal protection clause a departure a clear departure from what if we just assume i pathetically a sort of concentrated campaign of hateful speech sort of a get say as may be existed at one point against native americans your argument would be that insular group that cannot have success politically still would never happen chance to object on an equal protection ground well i think the question of whether or not the traditional public display of the non religious symbols such as they fly does not convey any does not does not deprive anybody of equal protection so if we're talking about an equal protection analysis then i don't think the analysis would be any different given the nature of a non religious secular symbolises courts of the fly was of your view agreed that the sixth circuit in the smith case begins to get close enough to the no good well yes and actually that was the that issue was actually raised and briefed in the district court it was not reprieve to raised on appeal by the appellate but certainly the question there was slightly more amorphous but yet it wasn't because in the in getting close to closing counsel's argument is quote first smith that inscription written into law over the door of his town is an injury his sense of community is deeply offended because the doorway to his town is an extension in a symbolic way of his own doorway i think though the the ultimate issue being that in the future future further minorities were not going to be allowed into that community the stigmatizing aspect that alan talks about that there must be stigma to someone who was already living there so i think that and i think a district court correctly analyzed that in light of the allegations that point it makes here that the simple the public display of the fly in and of itself simply cannot deprive nor pretty create a barrier that that has not been alleged here i would also say that there was a discussion in the district court and in the briefing about this the  physical manifestations of what what amount from astigmatic injury mr moore has alleged she has these physical manifestations of that gets him no closer under the equal protection analysis and as the district court noted those essentially sound in court in a run constitutional right guaranteed by the fourteenth amendment and we certainly think that analysis was correct that even though he's alleged that he has zero physical manifestations from his distaste towards this symbol oh and it suggested in the briefing that the district court erred by making this decision at the motion to dismiss stage and it should proceed to summary judgment or ultimately trial no modicum of proof is going to change the fact that those physical manifestations are also in that regard when you bring up those two cases of both those decisions you know commended this issue as being one of a of a political question and while the district court did not directly address that we argued it below it was not raised it was not a basis that seems appealing and i remember justice frankfurters dissent but but it doesn't seem to eat it does the record reflect what the racial makeup was in the referendum vote that information would have been publicly available during the from the secretary of state's office in the district court noted that based on the percentage of the district court conveyed this to counsel during the hearing that based on the percentages it's it's understood that it's some percentage of african americans voted for the for the current flight so to these to the extent that there were any factual issues addressed at the district court level though that was one that was touched upon so a little bit was only clear on the briefs on this hearing was held on the standing issue where currently plaintiff was allowed to in effect resume testimony which is very unusual motion to dismiss the ending but tell me how that played out following the i believe was the fall of the third of the complaint before any answers or response of pleadings were due the court to a spot directed the parties to brief standing and the political question doctrine and set a time limit for those and then following the submissions of briefs the court schedule did the motion to dismiss we were for the government filed a motion to dismiss as our response in addressing the issues of standing of the political question doct counsel had counsel present made arguments yes you're correct that mr moore also presented what amounted to a question and answer session between the court of counsel at various times when the district court was trying to determine whether or not mr moore had stated or alleged any specific denial of equal treatment under the equal protection clause and i think he notes that his opinion that he tried to flesh that out but procedurally or out of that's how that proceeded this was  proceedings the state in both both district court there were two district court proceedings and coleman standing was raised the district court said i find he has standing because you're easily the court sided another eleventh circuit case which was merely very much similar to  the jacksonville contractor's decision which which said that somebody who where the government imposes a barrier then they have sufficient standing for purposes of equal protection so i would submit that the district court erred in the stand analysis the state did not then raise that issue again at the eleventh circuit but in answer to your question yes i was and so in answer to that's how the procedural posture of this case mr moore was not under oath and as a matter of fact i believe the record will reflect it was a brief exchange with me where we were not alerted to the fact that there would be any testimony but as an officer of the court and as a licensed attorney in the state of mississippi i did not raise any objections as to the court's question of mr moore it was a combination of argument and testimony represented by counsel that he had suffered counsel for the first portion of the hearing or support and then factors that we were directed by the district court to to refer to address which was stating a political question of mr morse counsel present argument i think a lot of it stand with to the injury  factor we took a recess and then mr moore picked it up from there and addressed standing further his injuries he was asking questions about his affidavit testimony because if you recall the complaint did not make any of these allegations about the physical manifestations of his alleged injury his affidavit that he submitted in response to the court's order is the first time that he brought up the issue of this physical manifestation of an injury so while i can i cannot directly speak to what the court had in mind in that posture of it was certainly in response to a twelve b one lack of subject matter jurisdiction lack of standing raised by the state in response to in response to the court protection context so to say there is no case that says you can't come to court i think that's a that's a clever argument but it flies in the face of the longstanding jurisprudence of what this court for example in said in two thousand and twelve the court said and you must allege treatment different from those similarly situated that is completely lacking here so under any stretch of the imagination under any equal protection analysis by this court in the supreme court there is no case that would authorize somebody to have standing to bring a non economic stigmatic injury outside of the equal equal protection and so i addressed it in the context of why does it matter and the reason it matters is the supreme court all his or their in in valley forge there is no hierarchy the display would you know i certainly cannot speak on behalf of the governor what it's supposed to represent i can say it is a it is a symbol that and judge reeves in his his opinion has been a good and a a a very well written opinion discussing the history of it but what is it supposed to represent i think it means different things to different people is what i'm prepared to say and we're not just counting how mr moore or anyone else feels about the flag but i also think it is due to the district court raised an interesting question about why this is so problematic the court asked mr moore a series of questions about other people who are other identities of things associated with the mississippi's history for example in the names of state buildings or names of counties which are associated with the confederacy and mr moore and he said if if we if we have to remove the fly why don't we have to then rename all those buildings mr moore did not seem to be particularly bothered he said i don't visit some of those buildings or i don't visit some of those locations so that flag isn't a bottom in the boat what he has evolved over a period of time and different people ascribe different meanings to different people whether they be african are quite not african american object the answer is it means different things to different people and just as mr moore was not particularly bothered by other symbols that have been associated with mississippi's past other people may be equally as bothered by some of those things and different colors i think the university of maryland actually incorporates that as part of their athletic adornment but i'm not familiar with the history or whoever founded maryland i'm not familiar with like all of you i am not a flag i was just so in closing we believe that the district court was correct in applying the three prongs of article three standing we spent most of the time today talking about injury and fact appellants were you close at just two quick questions is they cite a fair bit of scholarship this is likely issues scholarship legal scholarship yes do you have any scholarship that sort of endorsers the distinction between establishment clause and equal protection no we didn't we didn't cite any and i read a number of that scholarship and some additional scholarship after reading what was cited by the plaintiffs if the supreme court were to change towards more of a coersion definition of a stablish ment would that alter the standing predicament just intellectually would you think it would i don't coercion with the state then be able to come in and say you don't have standing because you haven't been coerced because you see my point i do and i certainly see where you're headed with that in and i think that the problem and i think judge barksdale in the city of austin case noted oh how elusive standing has been in the established of this context and last question just because you have two minutes to quit would you mind addressing his argument about his daughter sure this two statute is yet at issue i believe when we had to hear original hearing of his daughter was not in school so that was one of the grounds that really was ripe but assuming she were in school the neither statute requires in the affirmative act on her part or any other students part it's of both statutes simply so we believe that whether she's in school or not in school the alleged would get you back into under god but but if there were some coercion involved just in terms of sort of bowing or you would say that could then require trigger an equal protection i think taking the statute on its face it's a svalbard you with what it requires is that it shall be taught in public schools and i think that i think the district court was correct that that does not provide a basis whether his daughter's in school or not in school and that the educational process certainly does not want to dictate that that those issues not be taught i certainly think you could construct a set of facts based on that that they could put us in a different posture but on the face of the statute itself if you were bringing a facial address briefly the allen case again and that is the case which starts off at standing discussion by saying standing is an intensely facts specific game theory it depends on the circumstances and claims made in each individual case the claims there involved an allegation that the government was not prosecuting adequately third parties that is classic absence of standing situation where party b says hey government he's breaking the law go after him so that introduction and alan makes what follows i think not at all applicable to this situation the facts are just too different the question of the interaction between government speech and equal said mentioned i think the cliff case which is first circuit i believe and it talks about well government speech can violate the blade may or may violate the equal protection cla cite in our brief the pleasant grove vs sumo case which is kind of the leading edge of modern jurisprudence talking about government speech and i quote from that decision but i don't i didn't quote from justice stevens concurring opinion but i'd like to just briefly highlight it right now justice stevens and his concurring opinion and so mom says government speech will not give the government free license to communicate offensive or partisan messages for even if the free speech clause neither restricts nor protects government speech government speakers are bound by the constitutions other proscriptions including those supplied by the establishment and equal protection  equal protection is emphasized in the opinion it's at five fifty five u s for eighty two there was a question about the referendum vote and you know how that broke down on racial grounds i don't think there's any record that shows you know how many black citizens voted for and how many voted against all i can tell you is that the percentage of people voting against that flag was almost exactly equal to the percentage of black voters in the state i'm sure some black voters voted for and some white people voted against it but the parallel is almost uncanny questions about mr moore's statements at the hearing  the judge has some questions for him which he answered he offered he volunteered to take the stand under oath and testify and both the judge and the state said not necessarily the state unilaterally after the dialogue between the judge and mr moore unilaterally stood up and said they accept as a factual basis everything he said in the dialogue with the  he submitted was an affidavit submitted which is perfectly appropriate in the context of a standing challenge the court's required to consider not only once in the complaint but one standing his challenge to consider federal executive officers speaking impulsively and saying things that offend people love mexican or hispanic origin that's actionable and anybody in the country has standing i think where do we look for a limiting principle if your theory of limiting principle has to be you do have to look as to whether there is some government as a whole through its through its authorized cross ses clearly executive officer governor president offensive i think an individual statement by an individual officer even if he is the president even if he's the governor has never been analyzed or described or scrutinized as government speech but of allegiance also states pledge of allegiance to the flag and to the state for which it stands flags stand for the state more than anything else more than my name is more than street names more than names of