The Sons of Confederate Veterans Sued Me Over My Use of the Confederate Battle Flag

During the 1990s, I used an emblem containing the Confederate Battle Flag surrounded by the name of my own organization. The Sons of Confederate Veterans filed a federal trademark lawsuit against my organization and me.

I represented myself.

My argument went to the heart of free speech: the Confederate Battle Flag is a historic political symbol. No private organization should be permitted to use trademark law to control another person’s political expression through that flag.

The SCV was entitled to identify and protect its own organization. But it was not entitled, in my view, to transform trademark law into private ownership of the Confederate Battle Flag or a means of suppressing its political use by a separate organization bearing a different name.

The Jury Awarded the SCV One Dollar

The case proceeded to a jury trial in the United States District Court for the Southern District of Mississippi.

The jury sided with the SCV—but awarded it only one dollar in damages.

The financial punishment did not end with that one-dollar verdict. District Judge William Henry Barbour Jr. imposed $21,666.61 in attorney’s fees against me. That obligation hung over my head for a very long time.

This demonstrated the danger confronting an ordinary citizen who attempts to defend his constitutional rights without the financial resources of an established organization. A one-dollar verdict became a penalty exceeding twenty-one thousand dollars.

The Appeal

I appealed the judgment to the United States Court of Appeals for the Fifth Circuit.

In 1999, the Fifth Circuit affirmed the judgment, dismissal of the counterclaim and attorney-fee award. Its opinion states that factual issues were not preserved for appellate review because no post-trial motion challenging the sufficiency of the evidence had been filed and no trial transcript had been ordered.

The United States Supreme Court subsequently declined to review the case.

The Surviving Case Information

Recovering the Historical Record

Exhausted and disgusted after the litigation, I regrettably discarded my copy of the case record.

The Clerk’s Office for the Southern District of Mississippi has now located archival information and directed me to the National Archives at Atlanta:

I have asked the National Archives to locate the complete case file and tell me what obtaining a copy would cost. I may not be able to afford reproduction of the entire record.

If any former attorney, SCV member, journalist, researcher or other person possesses pleadings, exhibits, transcripts, correspondence, news reports or other materials concerning this case, please contact me at giles@gilesshire.com.

The complete record belongs in the public history of the Confederate Battle Flag, trademark law and freedom of political expression.

Whatever one thinks of the flag, the underlying constitutional question matters:

Should a private organization be able to use trademark law to control another citizen’s political use of a historic symbol?

I believed then—and believe now—that my use of the Confederate Battle Flag was political speech.

Jimmy Giles
GilesForGovernor.com