I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Notes on the Confederate Memorial lawsuit: Sauce for the goose, sauce for the gander

I’ve pulled another standing case, which speaks in important ways to both the standing issue and, as to one claim, the merits issue.  It’s a pretty funny case for the SCV to have to explain away.

The overriding question is whether the SCV has any particularized injury on which to base their claim.  When they say they don’t want the sign changed, can they show they were injured by the change?  The secondary point is a First Amendment one:  To enjoin the University from placing up plaques, which is part of the relief sought, would clearly be a prior restraint against speech.  Reading a particular case has me wondering whether an injunction preventing the University from changing a sign is also a prior restraint against speech.  It sounds like “yes” to me.

In the case, the NAACP sued the Sons of Confederate Veterans, the Governor, and various state actors, asking to enjoin the purchase or use of the state flag because of its use of the stars and bars within it.  The Mississippi Supreme Court held:

Although the NAACP contends that the flying of the State Flag violates their constitutional rights to free speech and expression, due process, and equal protection as guaranteed by the Mississippi Constitution, these arguments fail to satisfy the threshold inquiry of constitutional injury. In Daniels, this Court determined that the flying of a Confederate Battle Flag by a county board of supervisors does not violate any constitutionally protected rights, essentially finding that there was no injury.
While the State Flag is not simply a Confederate Battle Flag, the part of the State Flag found objectionable by the NAACP and others is the depiction of such Confederate flag in the State Flag’s canton corner. Furthermore, the free speech, the due process and the equal protection arguments espoused by the NAACP would logically apply to the state-supported flying of a Confederate Battle Flag. Thus, the Daniels decision is controlling precedent. Neither the flying of the State Flag, nor the flag itself, causes any constitutionally recognizable injury. In this case, the NAACP failed, as did the plaintiffs in Daniels, to offer any proof that the flying of the State Flag deprives any citizen of a constitutionally protected right.

Mississippi Div. of United Sons of Confederate Veterans v. Mississippi State Conference of NAACP Branches, 774 So. 2d 388, 390 (Miss. 2000).  Aficionados of Supreme Court dicta will recall that the Court went on to opine that, in passing the Code of 1906, which did not carry forward the adoption of a state flag, meant that there was no official state flag.  Not our problem, concluded the court, the legislature can fix it (or not), and, meanwhile, neither the NAACP nor anyone else has standing to complain about the flying of the unofficial state flag.

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