Should rebel flags be treated as Confederate monuments? Linwood Cemetery lawsuit shifts
The legal fight over flying Confederate battle flags at Columbus’ Linwood Cemetery again is moving to another court.
After the city this past October pulled up two flag poles on which the Sons of Confederate Veterans flew battle flags, the SCV sued in Muscogee Superior Court, citing a state “monuments act” protecting Confederate memorials.
The SCV suit also claimed the city violated the group’s free speech rights under the First and 14th Amendments to the U.S. Constitution.
Based on those constitutional claims, attorneys for the city immediately had the suit moved to federal court, which has jurisdiction over such matters.
Now the SCV has dropped those federal allegations, amending its suit to cite only the Georgia monuments law, to move the case back to Superior Court and have a judge decide it there.
In federal court, for the Middle District of Georgia that includes Columbus, the suit likely would have gone before U.S. District Court Judge Clay Land.
The city was prepared to defend itself there, having found a unanimous U.S. Supreme Court ruling that private monuments displayed on city property represent “government speech,” so cities have a right to decide what messages they convey.
The city still maintains the SCV’s flags and poles were privately owned memorials erected on public property that council controls, and not publicly owned monuments protected by state law.
In Muscogee Superior Court, the suit randomly will be assigned to one of the Chattahoochee Judicial Circuit’s seven Superior Court judges.
The SCV’s attorney, T. Kyle King of the Jonesboro firm Hodges, McEachern & King, said enforcing the state law was always his clients’ first aim, so deciding the case in a state court is more appropriate.
The state law was meant to ensure neither vandals nor local governments objecting to Confederate tributes hid, destroyed or removed such monuments, many of which — unlike the flag poles at Linwood — were erected during the Jim Crow era of racial segregation.
The timeline
The issue of flying rebel flags at Linwood dates back to 1994, when Columbus Council voted 6-4 to let the SCV erect poles at two cemetery sections where rebel soldiers’ graves are concentrated.
The resolution allowed the SCV to fly battle flags continuously, occasionally substituting other Confederate banners.
Here’s a timeline of events:
- March 28, 1994: Columbus Council passes a resolution allowing the SCV to erect two 35-foot poles for flying 6-by-10-foot Confederate flags.
- August 2017: After a counter-protester is killed during a “Unite the Right” rally centered on a statue of Confederate Gen. Robert E. Lee in Charlottesville, Va., someone removes the battle flags flying at Linwood.
- Nov. 27, 2018: Then-Mayor Teresa Tomlinson issues a policy prohibiting the battle flag’s display on any city property.
- Sept. 19, 2019: SCV representatives pushing to resume flying the battle flag meet with current Mayor Skip Henderson, who tells them the city will remove the poles if the group flies the red, star-crossed banner at Linwood.
- Oct. 11: The SCV sends city leaders a letter stating it will sue under the monuments act if the city follows through on its threat.
- Oct. 18: The SCV flies the battle flag at Linwood.
- Oct. 22: Columbus Council votes unanimously to rescind its 1994 resolution, and has the flags and poles removed.
- Dec. 4: The SCV files suit in Muscogee Superior Court.
- Dec. 5: Attorneys for the city have the case transferred to federal court.
- Dec. 17: The SCV amends its lawsuit to drop claims the city violated its constitutional rights, and reaffirms its claims under state law.
- Dec. 23: The city files a response to the lawsuit in federal court, denying the SCV’s claims and asserting immunity from the suit.
The city is represented by Thomas Gristina and Jim Clark of the Columbus firm Page, Scrantom, Sprouse, Tucker and Ford. They said Friday that the next step in the process is for King to file a federal motion to return the suit to Superior Court, or for a federal judge to issue an order sending the case back.