April 2022 - Parks & Recreation - 28

LAW REVIEW
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
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
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
28 Parks & Recreation | APRIL 2 0 22 | PARK S ANDRECRE AT ION . OR G
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 Amend
April 2022 - Parks & Recreation

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