NICKERSON, District Judge.
This action is before the Court on Plaintiff's Motion for Preliminary Injunction (Paper No. 3). Defendants have opposed the motion, and have also moved for summary judgment (Paper No. 7). The issues have been fully briefed and a hearing, going both to the request for a preliminary injunction and the merits, was held on November 30, 2000.
Point Lookout Confederate Cemetery ("Point Lookout"), located in St. Mary's County, Maryland, was the site of the Point Lookout prison camp operated by the United States during the Civil War. Complaint at ¶ 9. Point Lookout contains a mass grave of approximately 3,300 Confederate soldiers who died while imprisoned at Point Lookout. Id. The grave is marked by an "eighty-five foot granite monument ["Federal Monument"], erected and maintained by the United States." Opp. at 1. Around the base of the Federal Monument are "twelve bronze plaques bearing the names of Confederate Prisoners known to have died at Point Lookout," as well as a bronze plaque indicating, among other things, that the monument was erected by the United States. Opp. at 6. Point Lookout also contains a smaller state monument. The only other permanent display at Point Lookout is a U.S. flag, which flies on a permanent flagpole at all times, illuminated between sunset and sunrise. Surrounding Point Lookout is a five-foot-high, wrought-iron fence, see Opp. at 5, with a bronze plaque at the entrance identifying the property as "Point Lookout Confederate Cemetery." Motion at 6.
The entrance to Point Lookout is less than 30 feet from a state highway. Both monuments and the U.S. flag are visible from the road, as is the bronze entrance plaque identifying Point Lookout. Approximately eight-tenths of a mile from Point Lookout is the State of Maryland's Point Lookout State Park, which includes a Civil War museum and other attractions. See Opp. at 6.
Point Lookout was the property of the State of Maryland until ownership was transferred to the U.S. government in 1910. Point Lookout is currently owned and controlled by the Department of Veterans Affairs ("VA") through the National Cemetery Association ("NCA"). To facilitate the management of national cemeteries, the VA and NCA have promulgated various regulations regarding the operation and use of such cemeteries, including Point Lookout. These regulations (collectively referred to as the "Flag Restrictions") include 38 C.F.R. § 1.218(a)(14),
Plaintiff, a descendant of a Confederate soldier held prisoner at Point Lookout and a member of various confederate historical organizations, including the Sons of Confederate Veterans ("SCV"),
In light of this denial, Plaintiff brought suit seeking declaratory and injunctive relief
Plaintiff then filed his motion seeking a preliminary injunction to prohibit "defendants from interfering with Plaintiff's display of a full-size, historically accurate Confederate flag at [Point Lookout], on a daily basis, from its own flag pole located near the Federal Monument."
A hearing was held on November 30, 2000. Under Fed.R.Civ.P. 65, a hearing on a motion for preliminary injunction may be consolidated with a trial on the merits. At the hearing, the parties went beyond the issues surrounding the necessity of a preliminary injunction and fully addressed the merits of the case. Thus, the Court will proceed directly to the merits.
A. 38 C.F.R. § 1.218(a)(14)
1. Facial Challenge
Plaintiff asserts that 38 C.F.R. § 1.218(a)(14), on its face, is an unconstitutional prior restraint on speech because it: (1) vests unlimited discretion in VA officials to prohibit speech; (2) fails to require prompt decisions on requests to "speak"; and (3) improperly places the burden on the speaker to initiate court proceedings to secure the right to speak. See Motion at 17-22. Defendants do not address the merits of Plaintiff's challenge to the regulation; instead, Defendants assert that such a challenge is not properly before this Court as exclusive jurisdiction lies with the Court of Appeals for the Federal Circuit.
Permissibility of judicial review of rules and regulations, such as 38 C.F.R. § 1.218, is governed by 38 U.S.C. § 502. Under section 502, "[a]n action of the Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers ... is subject to judicial review. Such review shall be in accordance with Chapter 7 of title 5 and may be brought only in the United States Court of Appeals for the Federal Circuit." The parties do not dispute that section 553 specifically exempts matters relating to public property, such as Point Lookout, from the purview of section 502. This exemption, however, is negated by the application of section 552(a)(1), which covers rulemaking. See Chinnock v. Turnage, 995 F.2d 889, 893 (9th Cir.1993) (stating that under 38 U.S.C. § 502, VA rulemaking is subject to judicial review only in the Federal Circuit).
In an unpersuasive plea, Plaintiff requests that this Court disregard the statute and exercise jurisdiction in the name of "fairness." See Pl. Reply at 39. The Court is, however, without authority to grant such a request. The statute is clear that "[f]acial constitutional attacks on regulations promulgated by the Secretary may be pursued in one of two ways—either in accordance with the procedure set forth in the Veterans' Judicial Review Act [not applicable here], or directly in the Federal Circuit Court of Appeals as permitted by 38 U.S.C. § 502." Hall v. U.S. Dep't Veterans' Affairs, 85 F.3d 532, 534 (11th Cir. 1996).
For the foregoing reasons, the Court holds that the facial constitutional challenge to 38 C.F.R. § 1.218(a)(14) may only be brought in the Federal Circuit Court of Appeals.
2. "As Applied" Challenge
In addition to the facial challenge, Plaintiff also asserts an "as applied" challenge to 38 C.F.R. § 1.218(a)(14). An as applied challenge differs from a facial challenge in that it looks to the constitutionality of the statute or regulation as it is applied to a particular set of circumstances. In addition, the remedy is very different: "If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances ..., but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances." Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir.1997), cert.
Defendants' counter with the argument that another statute, 38 U.S.C. 7292(d)(1), (2),
In addition to there being no statutory bar to this Court exercising jurisdiction over the as applied challenge, case law supports the contention that this Court is, in fact, the proper court to hear such a challenge. First, the direct review provisions of section 502 are to be read narrowly. See Hilario v. Secretary, Dep't of Veterans Affairs, 937 F.2d 586, 588 (Fed.Cir. 1991). Under the direct review provisions, the Federal Circuit "may review the VA's procedural and substantive rules, any amendments to those rules, and the process in which those rules are made or amended." Disabled American Veterans v. Gober, 234 F.3d 682, 688 (Fed.Cir.2000). Application of a rule is not, however, "rulemaking" to which section 552(a)(1) refers because "rulemaking is legislative in nature, is primarily concerned with policy considerations for the future rather than the evaluation of past conduct, and looks not to the evidentiary facts but to policymaking conclusions to be drawn from the facts." LeFevre v. Secretary, Dep't of Veterans Affairs, 66 F.3d 1191, 1196 (Fed.Cir. 1995), cert. denied, 517 U.S. 1188, 116 S.Ct. 1674, 134 L.Ed.2d 778 (1996) (citations omitted). See also Hilario, 937 F.2d 586 (Fed.Cir.1991) (holding that section  confers no jurisdiction on the Federal Circuit to hear a challenge to the application of a veterans' benefits statute to the facts of a particular claim).
Defendants' denial of Plaintiff's request was not, however, based directly on 38 C.F.R. § 1.218(a)(14). Instead, the decision to deny the request cited the Flag Manual and Flag Policy, see Aug. 24, 2000 Pohlman Letter and Aug. 28, 2000 Rapp Letter, which are based, in part, on 38 C.F.R. § 1.218(a)(14). See Flag Policy. Therefore, 38 C.F.R. § 1.218(a)(14) will be addressed only to the extent necessary to evaluate Defendants' actions under the Flag Manual and Flag Policy.
B. Flag Manual and Flag Policy
The issue presented is whether Plaintiff has a First Amendment right to fly a Confederate flag at Point Lookout. In Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), the Supreme Court outlined the appropriate framework for analyzing an alleged First Amendment infringement. First, the court must decide whether the speech at issue is speech protected by the First Amendment. If it is, the court must then "identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic." Finally, the court "must assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard." Id. at 797, 105 S.Ct. 3439. Applying this analysis, this Court finds that Plaintiff's speech is protected speech occurring in the context of a nonpublic
1. Display of Flag is Protected Speech
The first issue is whether the speech at issue, here the display of the Confederate flag, is the type of speech protected by the First Amendment. Defendants do not contest this issue. Flags have long been recognized as "a form of symbolism comprising a primitive but effective way of communicating" worthy of protection by the First Amendment. Spence v. State of Washington, 418 U.S. 405, 410, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). See also Texas v. Johnson, 491 U.S. 397, 404-06, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Sons of Confederate Veterans, Inc. v. Glendening, 954 F.Supp. 1099, 1102 (D.Md. 1997) (reiterating that "flags and other symbols are entitled to First Amendment protection as a variant of speech").
2. Forum Analysis
Whether or not the Flag Manual and Flag Policy are valid restrictions on Plaintiff's speech depends, first, on whether Point Lookout is a traditional public forum, a designated public forum, or a nonpublic forum.
Traditional public fora are places which "by long tradition or government fiat have made devoted to assembly and debate." Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Examples include places such as public streets, sidewalks, and parks. A restriction on speech in traditional public fora must withstand strict scrutiny, i.e., the restriction must be narrowly tailored to effectuate a compelling government interest. See id. Point Lookout is undisputedly not a traditional public forum.
A designated public forum is created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects. Id. The factors used to determine whether the government's intent was to "designate" a place as a public forum include: (1) the policy and practice of the government; (2) the nature of the property; (3) its compatibility with expressive activity; and (4) the extent of the use granted. See Cornelius, 473 U.S. at 802, 105 S.Ct. 3439; Claudio v. United States, 836 F.Supp. 1219, 1224 (E.D.N.C.1993), aff'd, 28 F.3d 1208 (4th Cir.1994) (citations omitted). Restrictions on speech in a designated public forum must also satisfy the strict scrutiny standard. Perry, 460 U.S. at 46, 103 S.Ct. 948.
A nonpublic forum is public property which is not by tradition or designation a forum for public communication. "Merely allowing some speech on property that is not a traditional public forum does not automatically create a designated forum." Warren v. Fairfax County, 196 F.3d 186,
In a nonpublic forum, restrictions on speech are subject to the reasonableness test. Under this test, "[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius, 473 U.S. at 806, 105 S.Ct. 3439. See also United States v. Kokinda, 497 U.S. 720, 730, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (articulating that restrictions on speech in a nonpublic forum "must be reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view").
Plaintiff asserts that national cemeteries in general and Point Lookout in particular are designated public fora because Defendants have made the cemeteries generally available to classes of speakers, including those who wish to display flags. Defendants counter with the argument that Point Lookout is a nonpublic forum because, outside of the daily display of the U.S. flag and the display of the POW/MIA flag on days designated by statute,
Of primary importance is the fact that Point Lookout, and national cemeteries in general, are not "generally available." Instead, those who wish to display a flag outside of the limited number of specified days must seek permission to do so. The same is true of a party desiring to engage in some other form of expressive activity, such as the annual SCV ceremony. By limiting expressive activity to "selective, permission only access" the VA may retain nonpublic forum status for Point Lookout, as well as all other national cemeteries. The designation of Point Lookout as a nonpublic forum is also supported by the fact that the nature of the property is not compatible with expressive activity. "It certainly cannot be said that cemeteries have traditionally been used for assembly and the free exchange of ideas. The primary purpose of cemeteries is not to facilitate the free exchange of ideas but, rather, to provide a place for citizens to bury and honor their dead." Warner v. City of Boca Raton, 64 F.Supp.2d 1272, 1291 (S.D.Fla. 1999).
Having determined that Point Lookout is a non-public forum, the restrictions on the requested display of the Confederate flag will be upheld only if they are reasonable in light of the purpose served by the forum and are viewpoint neutral.
3. Reasonableness Requirement
A valid restraint on speech in a nonpublic forum must be reasonable, with reasonableness measured in the context of the purpose served by the forum. See Cornelius, 473 U.S. at 806, 105 S.Ct. 3439.
Defendants' argument that their actions are reasonable is two pronged: first, that the refusal is reasonable given Defendants statutory responsibility to preserve Point Lookout, and all national cemeteries, as
a. National Shrine Argument
38 U.S.C. § 2403(c) mandates that all national cemeteries "shall be considered national shrines as a tribute to our gallant dead." Pursuant to this statute, Defendants argue that their opposition reasonably seeks to preserve the tranquility and dignity of Point Lookout by prohibiting conduct that might create controversy or invite conflict. See Def. Reply at 12. There are two primary flaws in this argument. First, Defendants have provided no evidence that the display will create controversy or disrupt the tranquility and dignity of Point Lookout. The record, in fact, refutes any such concern as the Confederate flag was flown daily at Point Lookout for almost four years
Second, Defendants overlook that the flying of the Confederate flag in an all Confederate cemetery affirms the statutory mandate that national cemeteries shall be "shrines as a tribute to our gallant dead." See 38 U.S.C. § 2403(c). Given the discrete context of Plaintiff's proposed display, along with the absence of any complaints during the prior years encompassing a similar display, one is hard put to imagine a rationally thinking person attributing a racial or discriminatory message to it.
b. Government Speech Argument
First, Defendants argue that the First Amendment is not applicable because the "speaker" is the government and the First Amendment protects only private expression. See Serra v. U.S. General Services Admin., 847 F.2d 1045, 1048 (2nd Cir. 1988). In support of this contention, Defendants cite several cases, including Serra and PMG Int'l Div., LLC v. Cohen, 57 F.Supp.2d 916 (N.D.Cal.1999). These cases, however, are not apposite to the issues here.
In Serra, the Second Circuit held that the government's removal of a government owned sculpture from federal property did not violate the artist's First Amendment rights. The Second Circuit stated that the purpose of the First Amendment is to protect private, not governmental, expression. Therefore, nothing precludes the government from controlling its own expression or that of its agents. Serra, 847 F.2d at 1048. The Second Circuit went on to say that the artist "relinquished his own speech rights" when he sold the sculpture to the government; had the artist wanted to retain some control over the placement of the sculpture, he could have bargained for those rights. Id. at 1049.
Similarly, in PMG Int'l, a magazine publisher asserted that his First Amendment rights had been violated by the government's refusal to purchase and resell "adult" magazines at a military exchange. The District Court held that the government has a right to decide what it is going to purchase and disseminate and that the First Amendment places no limitations on that right. PMG Int'l, 57 F.Supp.2d at 919.
Defendants argue, alternatively, that, if the speech is private expression, their actions are nonetheless reasonable because the speech in question would be perceived as government speech. Therefore, Defendants have an interest in avoiding the perception that the government condones or advances racial intolerance or divisiveness. In making this argument, Defendants rely heavily on County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989).
In Allegheny, the Supreme Court held that the display of a creche on the interior grand staircase of the Courthouse was unconstitutional because the display has the impermissible effect of indicating government endorsement of religion, in violation of the Establishment Clause. In making this determination, the Court indicated that the primary question is that of "what viewers may fairly understand to be the purpose of the display." Id. at 595, 109 S.Ct. 3086. That inquiry, of necessity, turns upon the context in which the contested object appears. Id. The Court also looked at the prominence of the contested object in the display, see id. at 580-81, 617, 109 S.Ct. 3086, and whether something in the context of the display detracts from the possible prohibited message. Id. at 598, 109 S.Ct. 3086. In Allegheny, the Court found: (1) that in the context of the grand staircase, viewers could reasonably perceive the display as the government's endorsement of religion; (2) that the government added to and enhanced the display, thus adding to the perception that the display was sponsored by the government; (3) that there was nothing in the context of the display to detract from the prohibited message, i.e., government endorsement of religion; and (4) that the creche was the dominant element of the display. Lastly, the Court held that the presence of a sign indicating that the creche had been donated by the Holy Name Society was insufficient to negate the perception of government endorsement of religion because the Establishment Clause "also prohibits the government's support and promotion of religious communications by religious organizations." Id. at 600, 109 S.Ct. 3086.
Defendants' reliance on Allegheny is misplaced. The facts and circumstances of the present case distinguish it from Allegheny in several ways. First, the present case does not involve religion or religious speech. Therefore, the broad sweep of the Establishment Clause is not implicated. Second, the context of the display militates against any potential that a prohibited message of racial intolerance could be inferred. As already noted, in the context of a Point Lookout, a cemetery established for the sole purpose of honoring Confederate dead, the only rational assumption is that the flag is being displayed because it is the flag under which those buried at Point Lookout fought and died. Additionally, the proposed subordinate positioning of the Confederate flag to the U.S. flag and its positioning in the shadow of the other monuments, simply presents an unpretentious recognition that those who are buried there died as members of the Confederate Army. See id. at 617, 109 S.Ct. 3086 (holding that Chanukah Menorah outside City-County building was in the shadow of other items and, therefore, was not impermissible under the Establishment Clause). Lastly, in the present case, a prominently displayed sign stating that the Confederate flag is provided and supported solely by the efforts of private citizens should remove any vestige of concern that someone
4. Viewpoint Neutrality Requirement
"Regardless of the type of forum, any governmental regulation of speech must be viewpoint-neutral." Sons of Confederate Veterans, Inc. v. Glendening, 954 F.Supp. 1099, 1102 (D.Md.1997). The existence of reasonable grounds for limiting access to a nonpublic forum "will not save a regulation that is in reality a facade for viewpoint based discrimination." Cornelius, 473 U.S. at 811, 105 S.Ct. 3439. "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Sons of Confederate Veterans, 954 F.Supp. at 1104 (quoting Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)). In all cases, the appropriate focus of the viewpoint inquiry examines whether the proposed speech is "otherwise permissible" in a given forum. Sons of Confederate Veterans, 954 F.Supp. at 1103.
Defendants argue that their decision was not an attempt to stifle a particular viewpoint but was, rather, based on the desire to prevent disruption of the reverence and decorum of national cemeteries and to avoid any perception that the government itself expresses a viewpoint. Conversely, Plaintiff asserts that the Flag Restrictions are viewpoint based and that the suppression of the Confederate flag is a suppression of a particular viewpoint attributed to the Confederate flag by Defendants. The Court agrees.
Defendants argument undercuts its claim that the decision to deny Plaintiff's request was viewpoint neutral. The Confederate flag does not represent the same thing to everyone. As Judge Smalkin of this Court recently observed:
Sons of Confederate Veterans, 954 F.Supp. at 1103 (quoting Coleman v. Miller, 912 F.Supp. 522, 530 (N.D.Ga.1996)). Yet, Defendant's continual reference to the Confederate flag as a symbol of racial intolerance and divisiveness, see, e.g., Opp. at 16, 29, 30, 33; Def. Reply at 1, 12, 13, 15, clearly demonstrates that Defendants are choosing, and advancing, the viewpoint of those offended by the flag over the viewpoint of those proud of the flag. See Sons of Confederate Veterans, 954 F.Supp. at 1103-04. This preference is not viewpoint neutral and is, therefore, impermissible. See R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 391, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (stating that the "First Amendment does not permit [the government] to impose special prohibitions on those speakers who express views on disfavored subjects").
Additionally, regulations that strike at an entire class of viewpoints, such as those here, have been repeatedly rejected. See Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 831-32, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Sons of Confederate. Veterans, 954 F.Supp. at 1103. The rationale is that such broad-based regulations are often simply a mask for viewpoint discrimination. See Sons of Confederate Veterans, 954 F.Supp. at 1103. Here, Defendants have prohibited all viewpoints related to the display of the Confederate
5. Content-Based Restrictions
The government argues that the Flag Manual and Flag Policy are permissible time, place, and manner restrictions. However, content-based time, place, and manner restrictions are presumptively invalid. R.A.V., 505 U.S. at 382, 112 S.Ct. 2538. Such restrictions must be narrowly drawn to effectuate a compelling state interest. Perry, 460 U.S. at 46, 103 S.Ct. 948.
The restrictions on the Confederate flag are not content-neutral because they treat the Confederate flag differently than other flags, such as the POW/MIA flag. The Flag Manual permits the POW/MIA flag to be displayed daily at Point Lookout, or any other national cemetery, with the support of a local interest group. See Flag Manual at § 7(a). This is true even if the POW/MIA flag has no contextual relationship to the forum, such as if it were flown daily at Point Lookout. Yet, under the same Flag Manual, as well as under the corresponding Flag Policy, a local interest group is not permitted to display the Confederate flag at Point Lookout on a daily basis—even though the very purpose of Point Lookout is to honor the Confederate dead. The only difference between the Confederate flag and the POW/MIA flag is what each flag symbolizes in the eyes of Defendants. Thus, the Flag Manual and Flag Policy, as applied to the Confederate flag in the context of Point Lookout, are impermissible content-based restrictions in violation of the First Amendment.
For the foregoing reasons, an Order will issue granting Plaintiff's request for declaratory and permanent injunctive relief. Because this would appear to resolve all issues pending in this litigation, this Order will be a final order.