(CN) - Now that the Department of Veterans Affairs consistently bans the posting of material on its property, a veteran who tried to hang an upside-down flag no longer has a case, the 9th Circuit ruled Friday.
The Department of Veterans Affairs (VA) has prohibited the unauthorized posting of materials on VA property since 1973.
It faced a challenge to that practice from veteran Robert Rosebrock, who protests weekly outside the VA's Los Angeles health care facility to draw attention to the VA's failure to allow veterans, especially homeless veterans, use of the campus lawn.
For eight months, Rosebrock and other protesting veterans hung the American flag on the fence surrounding the lawn and police never told them to take it down.
When the protestors hung the flag "in distress" upside down, however, the police immediately enforced the provision forbidding authorized postings.
Rosebrock sued the VA over its inconsistent enforcement of the rule, and the VA director in turn emailed VA police instructions to consistently enforce the prohibition.
"As we discussed, this means that NO outside pamphlets, handbills, flyers, flags or banners, or other similar materials may be posted anywhere on VA Property (including the outside fence/gates)," the email said (parentheses in original).
"This includes any flags displayed in any position."
A divided three-judge panel of the 9th Circuit affirmed Friday that the Rosebrock's request for an injunction is moot now that the VA has recommitted to enforce the regulation regardless of subject matter.
"We have little concern that the VA is engaged in gamesmanship where, as here, the VA states that it will be more vigilant in following a previously existing policy of consistent enforcement of a longstanding regulation," Judge Jay Bybee wrote for the majority. "Our confidence in the government's voluntary cessation."
The problem in this case was not a matter of the policy on its face, but of its enforcement.
Therefore, the government's "voluntary cessation" of its improper enforcement "increases our confidence that 'the challenged conduct cannot reasonably be expected to recur,'" the 28-page opinion states.
While the VA could change its mind, "we presume that the government acts in good faith, and that presumption is especially strong here, where the government is merely recommitting to consistent enforcement of one of its own longstanding regulations," Bybee concluded.
Judge Johnnie Rawlinson wrote in dissent that the director's email did not protect Rosebrock's First Amendment rights, or address all of Rosebrock's concerns about the policy's enforcement.
"It is beyond dispute that this Vietnam-era veteran has earned the right to exercise the full panoply of First Amendment protections available in this country," Rawlinson said. "We should not whisk away those rights with the flick of a pen."