                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-1832


SONS OF CONFEDERATE VETERANS, VIRGINIA DIVISION,

                 Plaintiff – Appellant,

            v.

CITY OF LEXINGTON, VIRGINIA; MARILYN E. ALEXANDER; DAVID
COX; MIMI ELROD; T. JON ELLESTAD; BOB LERA; GEORGE R.
PRYDE; CHARLES SMITH; MARY P. HARVEY-HALSETH,

                 Defendants – Appellees.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:12-cv-00013-SGW-RSB)


Argued:    May 16, 2013                      Decided:   July 5, 2013


Before    KING, DIAZ, and FLOYD, Circuit Judges.


Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Diaz and Judge Floyd joined.


ARGUED:   Thomas Eugene Strelka, STRICKLAND, DIVINEY & STRELKA,
Roanoke, Virginia, for Appellant.     Jeremy E. Carroll, GLENN,
FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellees.
ON BRIEF: Douglas R. McKusick, THE RUTHERFORD INSTITUTE,
Charlottesville, Virginia, for Appellant. Paul G. Beers, GLENN,
FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellees.
KING, Circuit Judge:

        The Sons of Confederate Veterans, Virginia Division (the

“SCV”), initiated this action against the City of Lexington,

Virginia, plus several of its officials, alleging that Lexington

City Code section 420-205(C) (the “Ordinance”) contravenes the

SCV’s       First    Amendment    rights    and    breaches       a    consent    decree

resolving      an     earlier    lawsuit    between      the    SCV    and    Lexington.

Enacted in 2011, the Ordinance bans any private access to City-

owned       flag    standards.      The     district      court       ruled    that     the

Ordinance      is     constitutional       and    dismissed     the     Complaint       for

failure to state a claim.            See Sons of Confederate Veterans, Va.

Div. v. City of Lexington, Va., No. 7:12-cv-00013 (W.D. Va. June

14,   2012)        (the   “Opinion”). 1     The    SCV    has    appealed,       and,    as

explained below, we agree with the district court and affirm.



                                           I.

                                           A.

                                           1.

        In early 2010, the SCV began planning a parade in honor of

the upcoming Lee-Jackson Day, a holiday held in mid-January in


        1
       The Opinion is published at 894 F. Supp. 2d 768 and also
found at J.A. 34-43. (Citations herein to J.A. __ refer to the
contents of the Joint Appendix filed by the parties in this
appeal.)



                                            2
the Commonwealth of Virginia to celebrate the births of Robert

E.     Lee    and       Thomas      J.    “Stonewall”     Jackson. 2       Two   months

beforehand, the SCV requested permission from the Lexington City

Council to use flag standards affixed to certain light poles

along       the    street      to   display     the   Confederate   flag   during   the

parade.           The City Council had theretofore permitted the flag

standards          to    be    used      by   private    organizations,      including

Washington and Lee University, the Virginia Military Institute,

and several college fraternities.

       At its December 2, 2010 meeting, the City Council granted

the SCV’s request by a five-to-one vote.                     Soon thereafter, at a

subsequent meeting, the dissenting Councilman moved the adoption

of a “flag/banner” policy, suggesting that the City Attorney and

City    Manager         be    charged    with   the   policy’s   development.       The

motion passed unanimously, and at a March 2011 meeting — after

the SCV had displayed its Confederate flag at the January 2011

parade — the Council received public comments, most opposing the

display of the Confederate flag within the City.




        2
       Because the district court resolved this dispute pursuant
to Federal Rule of Civil Procedure 12(b)(6), we accept the facts
alleged in the Complaint as true and view them “in the light
most favorable to the plaintiff.”      Spaulding v. Wells Fargo
Bank, N.A., 714 F.3d 769, 776 (4th Cir. 2013). The Complaint is
found at J.A. 5-13.



                                                3
     Six months later, in September 2011, Lexington adopted the

Ordinance, restricting any future use of the City-owned flag

standards to three flags only.        The Ordinance, codified in the

“Signs” article of the “Zoning” chapter of the Lexington City

Code, provides:

     (1) Only the following flags may be flown on the flag
     standards affixed to light poles in the City and no
     others:

          (a) The national flag of the United States of
          America (the “American flag”).

          (b) The flag of the Commonwealth of         Virginia,
          Code of Virginia, Title 1, Chapter 5.

          (c) The City flag of Lexington.

     (2) The American flag, the flag of the Commonwealth of
     Virginia and the City flag of Lexington may be flown
     by the City on the light poles that have flag
     standards affixed to them on dates adopted by City
     Council. . . . Currently the holidays or designated
     days are as follows:     Independence Day, Labor Day,
     Veterans Day, Flag Day, Martin Luther King Day,
     Memorial Day, Lee-Jackson Day, Presidents Day, and on
     the day of the annual Rockbridge Community Festival.
     On such dates or days the flag(s) may be flown for
     more than one day. No other flags shall be permitted.
     Nothing set forth herein is intended in any way to
     prohibit or curtail individuals from carrying flags in
     public and/or displaying them on private property.

Lexington City Code § 420-205(C) (2011).

                                 2.

     Similar to this action, the SCV had sued the City in 1993,

alleging constitutional violations involving the display of the

Confederate flag.   See Sons of Confederate Veterans, Va. Div. v.


                                 4
City    of    Lexington,      No.    7:93-cv-00492      (W.D.    Va.       1993).        That

lawsuit       arose     out   of    the   1991     rededication       of    a     Stonewall

Jackson      statue     in    Lexington.         Members   of   the    SCV       sought    to

display       the     Confederate     flag    as    they     marched       in     a    parade

celebrating the occasion, but, as alleged, the City prohibited

the display.          That suit was settled by a “Consent Decree,” under

which the City and its agents were permanently enjoined from

denying or abridging the rights of the SCV and its members

       to wear, carry, display or show, at any government-
       sponsored or government-controlled place or event
       which is to any extent given over to private
       expressive activity, the Confederate flag or other
       banners, emblems, icons or visual depictions to bring
       into public notice any logo of “stars and bars” that
       ever was used as a national or battle flag of the
       Confederacy.

Consent Decree 2. 3

                                             B.

       On January 12, 2012, the SCV filed its two-count Complaint

against Lexington, six of its City Council members, the Mayor,

and    the    City     Manager     (collectively,      the    “City”).           The    first

claim,       entitled    “Civil     Contempt,”      alleges     that       the    Ordinance

impermissibly conflicts with the Consent Decree.                                 The second

claim, designated simply as “42 U.S.C. § 1983,” asserts that


       3
       The district judge presiding over this case also presided
over the 1993 proceedings and entered the Consent Decree, which
is found at J.A. 14-18.



                                             5
enactment of the Ordinance was the City’s response to the SCV’s

request    to     engage     in    protected         expression        within     the        “flag

standard    forum”     and,       thus,    constitutes           viewpoint       and    content

discrimination that is violative of the Free Speech Clause.                                       The

Complaint    seeks     declaratory         relief,        an     adjudication          of    civil

contempt, fees, costs and sanctions, plus damages.

        On March 21, 2012, the City moved to dismiss the Complaint

pursuant     to    Rule     12(b)(6)       of       the    Federal       Rules     of        Civil

Procedure.        The motion made several points, including that the

flag standards are not a public forum and the Ordinance survives

constitutional scrutiny because it is reasonable and viewpoint

neutral.        The    City       also    maintained           that    the    Ordinance            is

consistent      with   the     Consent      Decree,        which       only   enforced            the

SCV’s    existing      First      Amendment         rights,      without      creating            any

special    right      for   the     SCV    to       display      flags    from    government

property.

        Although the district court granted the motion to dismiss

by its Opinion of June 14, 2012, the court rejected the City’s

assertion that the flag standards are non-public forums.                                          The

court     explained       that,     although          flag      standards        are        not     a

traditional public forum, the SCV had alleged facts showing that

Lexington    had      established         them      as    such    by     allowing       private

entities to use them.             Viewing the allegations of the Complaint

in the light most favorable to the SCV, the court proceeded

                                                6
“under the assumption that the City created a designated public

forum when it allowed private entities to fly their flags from

city-owned     flag    poles.”        Opinion    8.        The     court    therefore

assessed whether Lexington was entitled to close the designated

public forum, recognizing that

      [m]otive is a central issue in certain constitutional
      inquiries when government action has a discriminatory
      effect.     And, “[t]o be sure, if a government
      regulation is based on the content of the speech or
      the message, that action must be scrutinized more
      carefully to ensure that communication has not been
      prohibited merely because public officials disapprove
      the speaker’s view.”

Id. at   6-7    (footnote     omitted)       (quoting      U.S.   Postal    Serv.    v.

Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 132 (1981)).

The   court    determined     that,    because       the    Ordinance      “makes    no

distinction as to viewpoint or subject matter and advances no

particular position,” it is content neutral.                      Id. at 8.        As a

result, the alleged discriminatory motivation of the City in

closing the forum does not taint the otherwise facially valid

ordinance.     Id. at 8-9.

      Next,    the    district   court       ruled    that       the    Ordinance    is

reasonable, emphasizing that “[t]he Constitution does not compel

a   municipality      to   provide    its    citizens      a    bully    pulpit,    but

rather requires it to refrain from using its own position of

authority to infringe speech.”              Opinion 9.         The court recognized

that there were compelling and practical reasons for Lexington


                                         7
to   close     its      flag       standards          to   the    public,      such     as    the

possibility        of   the    City      being        forced     to    hoist   messages      with

which   it    would      rather       not    associate,          and    the    potential      for

private expression to subsume the intended official purpose of

the flag standards.                The Opinion stressed that the Ordinance

“leaves ample opportunity for [the] SCV and every other group to

display the flags of their choice.”                            Id.      Finally, the court

concluded that, because “the City has not abridged [the] SCV’s

constitutional rights, . . . the City has not violated the 1993

consent decree.”         Id. at 10.

     The     SCV     filed     a    timely        notice    of    appeal,      asking    us    to

reverse      the     judgment       of      the       district        court.     We     possess

jurisdiction pursuant to 28 U.S.C. § 1291.



                                              II.

     We review de novo the dismissal of a complaint for failure

to state a claim.              See Brown v. N.C. Dep’t of Corr., 612 F.3d

720, 722 (4th Cir. 2010).                   As the Supreme Court has explained,

“Rule 12(b)(6) authorizes a court to dismiss a claim on the

basis of a dispositive issue of law.”                          Neitzke v. Williams, 490

U.S. 319, 326 (1989).




                                                  8
                                          III.

     The      SCV    contends      that       the       district      court    erred       in

determining that, because the Ordinance is facially neutral, the

City’s motivation for closing the designated public forum was

immaterial.        Maintaining that the City’s restriction of the flag

standards was viewpoint-based, the SCV argues that “[c]ontrary

to the District Court’s ruling, a governmental entity’s decision

to close a forum for expression . . . is not unconstrained by

constitutional           principles,      and       the     closing      may       not     be

accomplished        in    order   to    censor      a     viewpoint    that    has       been

expressed in the forum.”           Br. of Appellant 16. 4              The SCV further

contends that, even if the Ordinance does not violate the Free

Speech Clause, it conflicts with the Consent Decree because, “by

making   it    a    violation      of    local      law     to   display      or   show     a

Confederate flag on a flag standard on one or more of the light

poles within the City of Lexington, the Defendants have denied

and/or   abridged        the   rights    of       the   [SCV]    as   provided      by    the

[Consent Decree].”          Id. at 23.


     4
       The SCV explains that the constitutional right being
abridged is that protecting freedom of expression, specifically
guaranteed by the Free Speech Clause of the First Amendment.
Pursuant thereto, “Congress shall make no law . . . abridging
the freedom of speech.” U.S. Const. amend. I. The Free Speech
Clause applies to the various states through the Fourteenth
Amendment.   See Snyder v. Phelps, 580 F.3d 206, 214 n.4 (4th
Cir. 2009).



                                              9
     In response, the City revives its contention that the City-

owned    flag     standards    are   nonpublic    forums   and    the   Ordinance

satisfies the relevant requirement that it be reasonable and

viewpoint neutral.            Nonetheless, the City also contends that,

even if the flag standards are designated public forums, the

Ordinance    is    constitutional      “[b]ecause    the   Flag    Ordinance    is

reasonable and facially neutral and there is no allegation that

it   has    any    discriminatory      effect.”      Br.    of    Appellees    36.

Additionally,        the   City      maintains    that     the    Ordinance    is

consistent with the purpose and plain language of the Consent

Decree. 5

                                        A.

                                        1.

     In assessing a First Amendment claim relating to private

speech on government property, we must first identify the nature

of the forum at issue — here, the City’s flag standards affixed

to its light posts.        See Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753, 761 (1995) (explaining that “[t]he right

to use government property for one’s private expression depends

     5
       In disposing of this appeal, we need not address the
City’s alternate contention, made in the district court and
herein, that flags flown on the City-owned flag standards
constitute government speech and are not subject to any First
Amendment protection. See Johanns v. Livestock Marketing Ass’n,
544 U.S. 550, 553 (2005) (“[T]he Government’s own speech . . .
is exempt from First Amendment scrutiny.”).



                                        10
upon”    the    nature     of       the    property);         Int’l       Soc’y    for    Krishna

Consciousness,          Inc.        v.     Lee,       505      U.S.       672,     678     (1992)

(recognizing           “forum       based”          approach        to     assessing       speech

restrictions that government places on its property).

       As     our     Court     has       recognized,          “[i]n       deciding       whether

government       property       should          be    made    available          for   protected

expressive       activity       .    .     .    ,    we     apply     different        levels    of

protection for different types of government property.”                                    News &

Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d

570,    577     (4th    Cir.    2010).              First,    public       forums      have    been

defined by the Supreme Court as “places which by long tradition

or by government fiat have been devoted to assembly and debate,”

and they are subject to stringent First Amendment protection.

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

45-46 (1983); see also Cornelius v. NAACP Legal Defense & Educ.

Fund,       Inc.,    473   U.S.          788,       817   (1985)         (recognizing      parks,

streets, and sidewalks as “quintessential public forums”).                                        A

governmental restriction on speech in a public forum is subject

to     strict       scrutiny,       which        requires         the     proponent       of     the

restriction to “show that its regulation is necessary to serve a

compelling       state     interest        and       that    it     is    narrowly       drawn    to

achieve that end.”              Perry Educ. Ass’n, 460 U.S. at 45 (citing

Carey v. Brown, 447 U.S. 455, 461 (1980)).



                                                 11
       Government property may also be classified as a “nonpublic

forum,” that is, “[p]ublic property which is not by tradition or

designation     a     forum    for      public        communication.”            Perry    Educ.

Ass’n, 460 U.S. at 45-46.                    A nonpublic forum — such as an

airport, see Int’l Soc’y for Krishna Consciousness, 505 U.S. at

679, or an election polling place, see Minn. Majority v. Mansky,

708    F.3d   1051,    1057    (8th       Cir.       2013)   —     is    entitled    to    less

protection from governmental restriction than a public forum.                                 A

regulation of speech in a nonpublic forum will be upheld if it

“‘is reasonable and not an effort to suppress expression merely

because       public     officials           oppose          the     speaker’s       view.’”

Multimedia Publ’g Co. of S.C. v. Greenville-Spartanburg Airport

Dist., 991 F.2d 154, 159 (4th Cir. 1993) (quoting Perry Educ.

Ass’n, 460 U.S. at 46).

       In resolving this appeal, we agree with the district court

that, viewing the Complaint in the light most favorable to the

SCV,    the   City’s    flag       standards          fall   under      a   third   category

denominated as “designated public forums.”                              Such a forum is a

nonpublic      government          site     that       has    been       made    public     and

“generally      accessible         to     all        speakers.”          Child    Evangelism

Fellowship of Md., Inc. v. Montgomery Cnty. Pub. Sch., 457 F.3d

376, 382 (4th Cir. 2006).                 A designated public forum may be made

available     “for     use    by    the    public       at   large       for    assembly    and



                                                12
speech, for use by certain speakers, or for the discussion of

certain subjects.”              Id.

       The   SCV     alleges          that    the       City    allowed       private       speakers

access    to    its       flag    standards          between         1994     and     2011.        For

instance, in September 1994, the City Council granted requests

from both Washington and Lee and VMI to fly flags representing

those institutions from the flag standards “on three occasions

per year.”          Complaint ¶ 21.                In 2005, a social fraternity was

granted permission to fly its flag from the standards, and, in

2009, other social organizations were granted permission to fly

flags    from       the       standards.            Id.       ¶¶ 22-23.             Viewing     those

allegations         in    the    light       most    favorable         to     the    SCV,     we   are

satisfied      that       the    City       designated         its     flag    standards        as    a

public forum because it has “purposefully opened [them] to the

public, or some segment of the public, for expressive activity.”

ACLU v. Mote, 423 F.3d 438, 443 (4th Cir. 2005) (emphasizing

that    “‘[t]he          government         does    not       create    a     public      forum      by

inaction       or    by       permitting       limited          discourse,          but     only     by

intentionally            opening        a     nontraditional            forum         for     public

discourse’” (quoting Cornelius, 473 U.S. at 802)).

                                                   2.

       Because the City’s flag standards constitute a designated

public   forum,          we   turn     to     an    assessment         of   whether       the      City

properly     closed        that       forum    when      it    enacted        the    Ordinance       in

                                                   13
2011.     This dispute is distinguishable from our prior decisions

on designated public forums, in which the applicable level of

scrutiny has depended on the type of speech or speakers that the

government sought to exclude.                See, e.g., Mote, 423 F.3d at 444

(explaining that “internal” or “external” standards of review

apply depending on type of speaker excluded in designated public

forum); Goulart v. Meadows, 345 F.3d 239, 250 (4th Cir. 2003)

(same); Warren v. Fairfax Cnty., 196 F.3d 186, 193-95 (4th Cir.

1999) (same).          Here, the City did not exclude either a specific

speaker or a specific class of speech, but closed a designated

public forum by disallowing all private expression from its flag

standards.

       It is important to our resolution of this case that the

Supreme Court has recognized that “a state is not required to

indefinitely retain the open character of [a designated public

forum].”       Perry Educ. Ass’n, 460 U.S. at 46; see also Cornelius,

473 U.S. at 802 (recognizing that government is not required to

retain    open    nature      of     designated    public   forum);     Currier   v.

Potter,    379    F.3d       716,    728   (9th   Cir.   2004)     (observing    that

government       may    close       designated    public    forum    “whenever     it

wants”); Make the Road by Walking, Inc. v. Turner, 378 F.3d 133,

143 (2d Cir. 2004) (advising that a “government may decide to

close a designated public forum”); United States v. Bjerke, 796

F.2d    643,    687    (3d    Cir.   1986)    (observing    that    “officials    may

                                             14
choose to close . . . a designated public forum at any time”).

Although the First Amendment guarantees free speech in a public

forum, it does not guarantee “access to property simply because

it is owned or controlled by the government.”              U.S. Postal Serv.

v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129 (1981).

As long as a designated public forum remains open, “it is bound

by the same standards as apply in a traditional public forum.”

Perry Educ. Ass’n, 460 U.S. at 46.             Here, the designated forum

was closed in 2011, and thus, it is no longer protected as a

public forum.

       The SCV’s primary contention on appeal — that the motive

behind   the    Ordinance   dictates    its    constitutionality    —    lacks

controlling precedent.       The Supreme Court’s decision in Hill v.

Colorado illustrates the point, explaining that “the contention

that a statute is ‘viewpoint based’ simply because its enactment

was motivated by the conduct of the partisans on one side of a

debate is without support.”         530 U.S. 703, 724 (2000).           Relying

on Frisby v. Schultz, 487 U.S. 474 (1988), the Court explained

that it had, in the past, recognized a picketing ordinance as

constitutional that “was obviously enacted in response to the

activities of antiabortion protesters who wanted to protest at

the home of a particular doctor.”             Hill, 530 U.S. at 725.         The

Free Speech Clause only “forbids Congress and . . . the States

from   making    laws   abridging   the     freedom   of   speech   —    a   far

                                       15
different      proposition        than   prohibiting       the    intent     to    abridge

such    freedom.”       Grossbaum        v.    Indianapolis-Marion          Cnty.       Bldg.

Auth., 100 F.3d 1287, 1293 (7th Cir. 1996) (internal quotation

marks omitted).         Furthermore, “‘[w]e are governed by laws, not

by    the   intentions       of    legislators.’”         Id.    (quoting     Conroy      v.

Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in

judgment)).

       The Ordinance has the effect of closing a designated public

forum — the perpetual availability of which was never guaranteed

— to all private speakers.                   The City was entitled to listen to

the public and to enact ordinances that are constitutional in

text and in operation, and that are supported by the electorate.

Notably, the Ordinance specifies that it does not “prohibit or

curtail       individuals         from   carrying       flags     in   public       and/or

displaying      them    on    private        property.”         Lexington    City       Code

§ 420-205(C)      (2011).           As   a    result,    all     private    groups       and

individuals remain free to express their flag-bound messages in

other ways.

       The SCV nevertheless maintains that the motive of the City

in enacting the Ordinance is “highly relevant” to our analysis,

and    that    the     discriminatory          motive     is    sufficient        for    the

Complaint to survive a Rule 12(b)(6) challenge.                             See Br. of

Appellant 21.        The authorities relied upon by the SCV, however,

fail to convince us that the City’s alleged desire to remove the

                                              16
Confederate    flag     from     its    standards          renders      the      Ordinance

unconstitutional.       The SCV relies on certain decisions that, it

says, link the constitutionality of a challenged statute to a

discriminatory       legislative       motive       in    its       enactment.      Those

cases,    however,    do   not    involve       a    government         property    forum

analysis, else they implicate the Free Exercise Clause or the

Equal Protection Clause, as opposed to the Free Speech Clause.

See Student Gov’t Ass’n v. Bd. of Trs. of Univ. of Mass., 868

F.2d 473, 480 (1st Cir. 1989) (upholding university’s decision

to abolish student legal services office, but relating in dicta

that “[o]nce the state has created a forum, it may not . . .

close the forum solely because it disagrees with the messages

being communicated in it”); Joyner v. Whiting, 477 F.2d 456 (4th

Cir. 1973) (prohibiting university from shutting down student

newspaper because administration disagreed with segregationist

viewpoints    being    espoused        therein);         see    also    Church     of   the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533

(1993) (explaining that “if the object of a law is to infringe

upon     or   restrict     practices          because          of     their      religious

motivation, the law is not neutral”); Crawford v. Bd. of Educ.

of City of L.A., 458 U.S. 527, 544 (1982) (recognizing that

facially neutral statute may contravene the Fourteenth Amendment

if enacted with discriminatory purpose).



                                         17
       The argument that a legislative motive matters — in the

nature of a “clean hands” equity contention — does not assist

our    inquiry     here.      A   government    is    entitled      to    close    a

designated public forum to all speech.                Reading a clean-hands

requirement into the closure of such a forum is not supported by

precedent and could produce an absurd result.                 For example, the

City could be beholden to the SCV and other private groups or

individuals (e.g., pro-choice activists, the Ku Klux Klan, the

Libertarian Party, etc.) that insisted on hoisting their flags

on    City-owned    standards,    notwithstanding      that   the    City    would

prefer to reserve its equipment purely for government speech.

In    other   words,   it    appears   that    the   City   experimented      with

private speakers displaying flags on the City’s standards, and

that effort turned out to be troublesome.                   It was entitled,

under the controlling principles, to alter that policy.

       Because the City’s flag standards are not a traditional

public forum, there is no legal support for requiring the City

to relinquish its control over them.             Inasmuch as the Ordinance

was   lawfully     enacted   to   close   a   designated    public       forum,   we

affirm the dismissal of the SCV’s free speech claim.

                                       B.

       Turning to the civil contempt claim relating to the Consent

Decree, we agree with the district court that, because there is

no constitutional violation posed by the Ordinance, there could

                                       18
be no violation of the Decree.              The Decree bars the City from

denying the SCV the right to display the Confederate flag at any

“government-controlled place or event which is to any extent

given over to private expressive activity.”                 Consent Decree 2.

Had the City not enacted the Ordinance, its rejection of the

SCV’s request to displays flags on the flag standards may have

violated     the    Decree.           The     City,     however,      has      now

constitutionally    abolished     “private      expressive     activity”       from

its flag standards.

       The SCV also argues that, because the City’s flag standards

were at one point given over to private expressive activity,

they   are   controlled    by   the   Consent   Decree      regardless    of    the

constitutionality     of   the    Ordinance.          But   because   the      flag

standards are no longer given over to private expression, their

use is not governed by the Consent Decree.                  The district court

thus properly rejected the SCV’s claim.



                                      IV.

       Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                                         AFFIRMED




                                       19
