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On April 9, 1865, General Robert E. Lee conceded, “[T]here is nothing left for me to do but go and see General Grant.” The Confederate Army surrendered, and Dixie, the Confederate battle flag, ceased to fly. But only temporarily. In 1956, for the first time in nearly a century, Georgia resurrected the Confederate symbol by changing its state flag in symbolic opposition to Brown v. Board of Education. South Carolina followed suit six years later, hoisting the flag above its state capitol. The following year, Alabama revived Dixie, with Governor George Wallace raising the flag as part of his “Segregation Forever” campaign. Brown is still the law of the land, yet Dixie remains entrenched.
Last year, in NAACP v. Hunt, the Eleventh Circuit rejected the National Association for the Advancement of Colored People’s (NAACP) claim that the Constitution of the United States and federal statutes mandate the removal of the flag from the Alabama state capitol. Central to the court’s conclusion was the notion that the Hunt plaintiffs’ problem involved neither the flag nor the law, but their “own emotions.” Moreover, the court held that “[t]here is no unequal application of the state policy; all citizens are exposed to the flag. Citizens of all races are offended by its position.” In sum, the court told the plaintiffs to turn elsewhere for relief, because “the federal judiciary is not empowered to make decisions based on social sensitivity.”
This Note takes issue with the Hunt court. It proceeds in two parts. Part I argues that the Alabama government’s flying of the rebel flag violates the Equal Protection Clause of the Fourteenth Amendment because the flag was raised with the intent to discriminate against blacks. Part II argues that flying the flag violates the First Amendment because it is a form of racist government speech that chills the speech rights of blacks.
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