well welcome all of you to do you or circuit today we have two interesting cases to discuss first being sons of the confederate veterans versus the city this case comes to you after being dismissed on a twelve b six motion for failing to state claim three issues before the court as the appellant will underscore today are whether the enacting of ordinance for twenty  by the city of lexington equated to the closing of a forum the second being whether this act by the city equated to government speech and third whether the one thousand nine hundred three consent decree was violated by the ordinance and thus rendering the apple e in contempt of court the briefest recitation of facts at hand in november two thousand and ten the sons of confederate veterans requested of the city the use of flag honor is that there are standards which are glorified flagpole holders affixed to light poles within the city of lexington ok that no flags typically fly from these unless saw unless asked for permission to fly flags through the city cite the flag that was requested of the sons of confederate veterans to fly was a confederate flag it was not the stars and bars that we all come we've we've all come to shoot better lives history of that is that is how you know they can't change it i'm saying what you're saying i'm saying that the enacting of this ordinance though neutral on its face closed a public forum impermissibly ok and that it showed enclosed and not just to your clients but the everyone should have those three different flags that are allowed to fly why isn't that contra do troll and reasonable and isn't that the end of the word no no your honor  first off this is this court has held that a neutral ordinance or law does not mean it can't be unconstitutional further inquiry into the legislative intent is not out of bounds the sons of confederate veterans were denied this opportunity well i am distinguished o'brian that's a suggest that there really is shaky terrain on which to try to gauge the legitimacy of an ordinance looking behind the legislators motives but you know there are all kinds of reasons why legislators do things that you do sure sure when you're wrong as you are at this point in the in the case on this twelve b six motion we contend that there are factual analyses that are necessary to determine the issues that the court review of the twelve the six motion that is before the court whether or not the complaint as filed has stated the claim that's the case before this court right now are you going around kensington and are holding their that basically said is court ruled that it was a it was a forum it was a college newspaper that was closed and it ruled that there was a few point and in this in determining that in examining the closure of that newspaper of why once organizations had asked for the ability to use flag standards to use their own flags to broadcast their own message in a nonpermanent way in this form of the flag standards that the city had allowed up to five other entities thirty that were not state or city related to use the standards that was or they don't think that since the passing of the more that's correct but it was the sons of confederate veterans who made the most recent inquiry into the uses of of of standards it was councilman lire who was the sole vote or against in two thousand and ten the sit the sons of confederate veterans to use their flags in the flag standards and it was councilman lire who then indicated to council that he would request a new policy be drafted to govern flags on the use of flag standards there is no evidence that the flag as far as selectivity or or permissive use of these standards there's no evidence that the city ever really denied anyone up to the point of this ordinance the use of those flags it wasn't until the sons of confederate veterans asked then there was a hearing a vote they were allowed then councilman lire stated that he wanted to have a policy drafted policy was drafted several months later and that was this ordinance that's closing off the flag standards to use to anyone who wanted to broadcast a message outside of the united states flag whatever it would convey the city or or state flags whatever that might say the underscored an argument of government speech frequently throughout their brief and there's one case that they to go back to was the soon case if i'm pronouncing that correctly but in the the that case regarded a very traditional public form and i can see that flag standards are not at this point a traditional public forum but the in the soon case you have a traditional public forum and the city in that case decided not to have a monument placed in the park the decision for a monument the monument to be placed in the park was a request of a citizen or organization not affiliated with city but the monument to be placed in the park there was a decision by the city not to have that monument or not having it the part that court this court the scene in court held that the of that decision by the city was government speech and thus we can't scrutinize government speech and so first amendment hands off however it's exceptionally important to note that in that case the court highlighted consistently the permanency of the alteration of the public form by having this statute that's going to be there this monument for as long as not there is a government speech and that was in the case of turner versus city council of the city of fredericksburg five thirty four f three d three fifty two was the fourth circuit case in two thousand and eight that has a four pronged test to determine whether or not this the act in action of the ordinance was government speech the first prong is to analyze the sense purpose of the program in which the speech in question occurs the second is the degree of editorial control that the city might have over the message the third is who is the literal speaker and the fourth being whether the government of the private entity bears the ultimate responsibility and we can go through all of those prongs the on the first the central purpose of the policy the displays of the flag were pursuant to requests of private organizations and the organization so access to the flag standards in order to honor a commemorate their specific events split these displays were not initiated by the city anyway and the city was not seeking to promote those messages they said second prong editorial control they didn't exercise any editorial control there was a kind of a binary system yes you can fire flags no you can't and they never exercised the no you can't up until the ordinance but as far as editor editing the message or having any control of what's in the message they never exercise that before number three the literal speaker the complaint alleges that the flags flown with those of the organization the sons of confederate veterans and it could be not only that it was a message crafted by that organization but that the organization itself own the flag now and in another case that significant from this court in two thousand and two and which appellant in that case and there are sons of confederate veterans ex wrote griffin vs the department of motor vehicles that was the case that got a confederate flag on a license plate it was found that the owner of the item displaying the message is often considered to be the literal speaker of the owner of the items displaying the message here or the sons of confederate veterans the flat the flag standards were own by the city but not the flag and finally as the all too responsibility for the content of the speech there is no indication in the complaint that the city exercises ever even requested any control over the content of the flags in some there is no basis for ruling that the complaint shows as a matter of law that the display of a private organizational flag from the standard constitutes government speech that argument simply doesn't hold water these this case involves factual analyses factual analyses that cannot be eliminated and it will be six may ask a question about the consent decree in your short yes yes it is we contempt i mean read literally the consent decree essentially requires as a precondition that there be some place for event that given over to private growth of activity once the activity is shut down in that matter to respect everybody not just your client isn't that the the consent decree and there's no basis for binding anyone in contempt of court but it will surely be the forum was certainly possible in the light most favorable to the appellant in this case that there was a discriminatory and in this behind the enactment of that ordinance we're entitled to all those factual inference is in our favor at this point there are more facts left to be uncovered such as the any intent that we can surmise from the council council members once we get through litigation but as it relates to the consent decree  jeremy carroll i'm half of the city of lexington may please the court the questions the court has already asked of mr strong i believe address the main point here in this issue your honor your honour's and that is the nature of the as judge d has pointed out that ends the inquiry under kensington volunteer fire department it which is a free speech case is just b s pointed out you do not explore the motivations of legislate tours when they enact a facial valid ordinance or in that case a budget a budget amendment budget law budget amendment i believe it was can sing ten relied on o'brien o'brian is the supreme court case in which the supreme court held that whatever the motivation congress had in making it illegal to burn draft cards be at the alleged motivation that they had opposition to to draft protesters was irrelevant if the the statute in that case was  facially constitutional and the court concluded that that indeed it was similarly in hill vs colorado the court reached the same decision this time it was based on abortion protesters as opposed to draft protesters but the court reached the same conclusion that you don't explore the few points you look to see if it's a facially neutral facial neutral ordinance and indeed in those cases they found that it was and they did not explore motivation and in fact they have some strong language about the risks and hazards of exploring motivation or what's different about the cases that you're opposing counsel cites suggesting that in some instances the courts can look at motivation what's the difference well most of the cases that he cites are either equal protection cost cases or status  cases or free exercise clause cases and those have a different body of law and there is some to need to explore most of the supreme court is held in those cases but it by the same token the supreme court has been adamant that in in speech related cases you do terminated the operation of the newspaper college newspaper because of some articles i suppose that had been published in the newspaper the court there focused on the executive action of the of the president of the university in kensington the court focused on the legislative action noted specifically that it was legislative action in kensington and he used that legislative action to distinguish from other executive action cases furthermore in kensington the court pointed out that you don't what you look to see is if it has an effect on anyone other than the plaintiffs or if the plaintiffs are treated differently and obviously with the neutral content of this ordinance facially treats everybody the same nobody has been allowed to fly flags on the lexington flag poles ever since since the passage of the ordinance so it is facially neutral it's legislative action under kensington it applies equally to all private parties under clinton and  brief because we respectfully believe it controls with regard to the mode of analysis the court there are and we cite in in our brief some actually not just free speech cases but specific forum closure cases which refused to explore motivation  requires discrimination behind the facade some viewpoint must be disadvantaged relative to other viewpoints and that's simply not the case here middletown another case we've cited however it is the rules themselves which must be viewpoint neutral the motivation for adopting a rule is irrelevant the court in georgia the gay versus hopi similar language and indeed one of the occupy wall street cases in this circuit it was a district court case down in south carolina held similarly we don't explore the motivations of legislators when it comes to closing a form and that in that case it was the south carolina state house grounds two other cases that i would prefer the court to which dealt not not they were signed ordinance cases but they deal with the concept of content more dogs in town to carry and in those cases the only time the court deigned to look beyond the nature or the the the language of the ordinance was when there was a content distinction in those cases even though there was a content distinction or differentiation in the base of the ordinance the court still looked at whether the nature of the distinction was because of content and determined that they were content neutral here we don't even have that inquiry because facially the content neutral and conceivably the content neutral  supreme court and circuit courts have encouraged closure in the capital square case which i did not cite in the brief and i regret having not done that the supreme court is around one thousand nine hundred five justice souter and a concurring opinion stated i also want to note specifically my agreement with the court's suggestion that the state of ohio could ban all unintended displays in capital square if it's decide the supreme court that's a that was a traditional form and the supreme court said private unintended displays in a traditional form could even be banned if it is a facially neutral now that was dicta can see i can see the point i was addicted but certainly the indication is there that the ability to close a forum is absolute as long as it's continuity and reasonable and for the reasons stated by judge wilson and discussed here today we respectfully submit that this passes muster under that analysis what what o'briens says is that part of the reason why we don't want to look behind a legislative motive is that it is at best a hazardous and over what if it was very clear in this case that the principal reason why this why these lag standards were being set down was precisely because of th congress we are governed by laws but not by the intentions of legislators if the law is facially neutral it passes muster under this type of free speech analysis and certainly under the for employers or analysis  given the cases that we've cited from the fourth circuit which was the leading case in having to do with government speech those cases your honor stand for the the proposition that where a government government entity own and controls the forum and limits access to the forum it can then engage in speech i don't mean all form across the board but if in a traditional forum such as a park the city has the authority because it is the speaker and through its selection of monuments it is speaking it then has the authority to exclude other monuments than respectfully here we submit that the the city as the granted granted access three times a year so there is some indication of selectivity on the face of the complaint but more importantly what he alleges is that wind up being l and v m and the sons of confederate veterans and the paternity of tain access to this poll they had to get the approval of the city city council passed a resolution or city council passed a motion city council controlled those flag standards at the whole time that the as a reference from paragraph twenty one to be now in v m i requested more than they were ultimately granted and i believe the january two thousand and eleven request by sons of confederate veterans it overlapped with martin luther king day and the city had already are what you're going to be needed a year probably higher than that probably the bottom of them might be ten feet but the top of probably fourteen feet or so and there are a line main street and there are some on jefferson and washington street as even before the ordinance of legislatively approving certain people to fly their flags on the polls was engaging in government speech and then i don't think it's really contested that after the an act of this ordinance which is being challenge that clearly t government is speaking at all times from those from those standards at this point you would ask the question about whether the sons of confederate veterans could indeed march up and down with their flags that they perhaps forgive me i'm one hundred wonder if it was a hundred and what that it was the it wasn't that it was something i apologized some kind of maybe it was his birth maybe it was his birth and it in any event there was some discussion about carrying the flags in the consent decree dealt with private speech private speech on the streets private speech on private property private speech on public property but marching with flags it didn't deal with flag standards in fact as alleged in the complaint no no private entity was ever allowed to even access made it clear that the consent of it was not intended to grant any judicially enhanced rights the sons of confederate veterans and their members have the first amendment rights of everybody else and this case does not present a situation where the city has violated those rights and therefore not only is there not a first amendment violation there is not a violation of the consent decree  because at all times the city was engaged in government speech when it when it spoke and delivered messages from its like standards and we respectfully request that it also deny the request to to overturn the decision as to the consent decree this establish that laws regulating conduct that have an incidental effect on speech may not be challenge under the first amendment this court recognized that o'brien dealt with a law that did not f speech and found that also was the case with respect to in kensington budget ordinance instant case does does involve a law that restricts expression and so there were o'brian analysis is in the political now there is a case i'd like to reference that's a supreme court case holder versus humanitarian project that's one thirty s c t two seven o five in that case and quoting another u s supreme court case texas first johnson states that if the government r regulation is related to expression quote then we are outside of the o'brian test and we must apply a more demanding standard a more demanding standard then brian must be applied in this case this case is not one in which  there was an incidental effect on speech there was a quite a monumental no pun intended effect on speech in this instance there was a closing of the form that closing through an action of the ordinance did not amount to government speech but if the court has any other questions i'd be happy to discuss at this time