The Right to (Begin to) Right a Wrong

By: Mannirmal Jawa

Across the Southern United States, Confederate monuments stand on government property as active souvenirs of the Jim Crow era. Local governments that try to remove the statues sometimes run into hurdles. For example, sometimes members of the public protest the removal; the infamous Unite the Right rally that turned deadly in Charlottesville in 2017 began as a protest of the removal of a statue of Robert E. Lee. But other times, states stand in the way of removal. Several southern states, including Virginia, North Carolina, South Carolina, Mississippi, Tennessee, and, until recently, Alabama, have state laws that prohibit the removal of war memorials, or complicate the procedure for doing so. These statutes were largely enacted either during the Jim Crow era or after 2000, and legislative history often indicates that they were intended to protect Confederate monuments specifically. There have not been many legal challenges to these laws, but this tide might be turning. As cities begin to take states to court over these laws, their choices of which Constitutional principles to utilize will shape this emerging landscape, and carry societal implications.

The City of Norfolk, Virginia was one of these cities. In Norfolk, there is a Confederate statue on city property. The city wants to remove it. However, Virginia Code § 15.2-1812 prohibited city authorities or anyone else from disturbing or interfering with monuments or memorials for wars, conflicts, or battles. In order to remove the statue, then, Norfolk filed suit against Virginia in August of 2019, arguing that the war memorial preservation law unconstitutionally infringed on Norfolk’s First Amendment right to free speech. This was not the first time Virginia’s courts dealt with this issue. In 2018, a Virginia judge ruled that tarps placed by the City of Charlottesville around a Confederate statue on city property must be removed.

Before a holding was issued in the case of Norfolk’s statute, Virginia’s legislature passed a law that gives cities the autonomy to remove confederate statutes. This move comes just a few months after Democrats gained control of all three branches of Virgnia’s government for the first time in over 20 years.

Although Virginia’s legislature has provided for cities’ removal of Confederate statutes, cities in other Southern states remain barred from doing so. It is unlikely, or at least uncertain, that the other states’ legislatures will enact laws like Virginia’s city-friendly law; unlike Virginia, all of the other states with war memorial removal statutes listed earlier currently have Republican-majority legislatures that they have maintained for several years. For cities in those states, the content of Norfolk’s complaint, and the fact that Norfolk initiated litigation at all, carry significance in the developing legal treatment of war memorial preservation laws, and Norfolk’s complaint will potentially give rise to similar lawsuits by cities in states with these laws. Norfolk’s complaint is one of few complaints in the country that have challenged a war memorial removal statute, and cities in other states with unsympathetic legislatures might still use Norfolk’s complaint as a guide for their own.

While there is not extensive precedent around war memorial removal laws, a decision that came out of Alabama last year gives the First Amendment argument that Norfolk used in its complaint some backing. The decision in Alabama, and Norfolk’s complaint that echoed its First Amendment argument, could help clear the path for a wave of similar First Amendment lawsuits targeted at Confederate monuments across the South. 

Alabama v. Birmingham: A First Amendment Argument Carries Promise

In the aftermath of the 2017 Unite the Right rally in Charlottesville, Birmingham Mayor William Bell ordered the covering of a Confederate monument on city property. Alabama Attorney General Steve Marshall filed suit against Birmingham, citing the Alabama Memorial Preservation Act  that passed earlier that year

On January 14, 2019, an Alabama court struck down the memorial preservation act, spending the majority of the opinion discussing the act’s infringement on Birmingham’s free speech rights under the First Amendment. First, the court established that the statue was in fact government speech, citing three relevant factors: (1) the history of the speech at issue; (2) a reasonable person’s perception of the speaker; and (3) control and final authority over the content of the message. The court cites two U.S. Supreme Court cases as the sources of these factors: Walker v. Texas Div., Sons of Confederate Veterans, Inc., and Pleasant Grove City v. Summum. The court then applied this three-factor analysis. Although the statue was established by a local chapter of the United Daughters of the Confederacy, the court held that the statue was the city’s speech because reasonable observers would interpret the statue as conveying a message on the city’s behalf. 

The court went on to list several other supporting statements of law based on Supreme Court precedent, including that a city has a right to speak for itself and select the views that it wants to express; that state regulation of municipal speech is subject to the U.S. Constitution’s limitations on speech regulations; and that the state’s interest in the case was impermissibly bound to the message of the statue. Finally, the court was stoic as it warned of the effect the law had on the free marketplace of ideas and the democratic process: “The democratic process here flew into motion after the people of Birmingham witnessed race-based violence across the South and decided, through their elected officials, to reject a message of African American inferiority. Under [the Alabama Memorial Preservation Act], however, the people of Birmingham cannot win.” 

The facts of Alabama do not seem to be strikingly unique among other conflicts that might arise in states with war memorial preservation laws. First, Alabama’s law is substantively similar to many other laws across the South: they all prevent municipalities from removing or otherwise altering war memorials. Additionally, the supporting statements of law offered by the Alabama court are from Supreme Court precedent, and would therefore carry just as much weight in other states as they do in Alabama. As long as the statues in question are on city property or would reasonably be perceived as city speech, then, courts that adopt the Alabama court’s reasoning would likely rule in favor of cities challenging the state laws. If cities do indeed begin to challenge these laws, the arguments they choose to make, and those they do not make, will have consequences.  

The Consequences of a Free Speech Blueprint

If Norfolk’s First Amendment argument had succeeded, Virginia would have been the second jurisdiction to strike down a war memorial preservation law on the basis of the First Amendment free speech rights of a city. The free speech argument against these laws would have been tried and tested in two different states, likely increasing the likelihood of success in other states. 

If this argument was shown to work a second time, it would put the onus on cities to challenge these state laws. Non-city parties that have taken on the task have not been successful: for example, before Norfolk’s lawsuit, two activists took on the same statute first earlier this year. In their suit, Roy Perry-Bey and Ronald Green  argued that the statue endorsed, among other things, white supremacy and violence, and thus represented a danger to them. The court dismissed their complaint, asserting that the First Amendment restricts government regulation of private speech, and does not restrict the government’s own speech. The City of Norfolk picked up the gauntlet and filed their own suit against the Commonwealth of Virginia less than a month later. The dismissal of the original suit in Virginia paired with the city’s victory in Alabama indicates that cities have a better chance at successfully challenging statue preservation laws under the First Amendment in court than citizens do. This development could encourage activists in states with such laws to direct their advocacy efforts towards city governments to initiate legislation, as opposed to becoming plaintiffs themselves. 

Additionally, a free speech blueprint might turn potential city plaintiffs away from other available arguments—most notably, Fourteenth Amendment Due Process and Equal Protection arguments. In Alabama, for example, the majority of the court’s opinion discussed free speech, but the court also took time to discuss how the memorial preservation law also violated Birmingham’s Due Process right to property, because the law did not provide for notice or a hearing before Birmingham’s desired use of its property was denied. Notably, Norfolk did not include a similar Due Process argument in its complaint at all. It simply alleged free speech violations.

While the exclusion of a Fourteenth Amendment argument might not be so significant in the context of property rights, a Fourteenth Amendment argument, and the exclusion thereof, might still carry meaning regarding what we as a society are willing to recognize as life, liberty, and property. In the first lawsuit over Norfolk’s Confederate statue initiated by Roy Perry-Bey and Ronald Green, Perry-Bey and Green did not just argue a free speech violation. They also presented a poignant Fourteenth Amendment argument, describing how “[t]he continued governments sponsorship and maintenance of the Confederate monument, the Seal of the Confederate States of American Monument, Confederate Standard-Bearer and engraved Confederate flag Display, constitutes white supremacy . . . and political or religious white supremacy practices in violation of the . . . Fourteenth Amendment . . . .” The judge did not agree with the plaintiffs that the state’s continued projection of white supremacist symbolism deprived the plaintiffs of life, liberty, or property, even while acknowledging their assertions that each of them had altered their behavior to avoid direct contact with the monument. 

Perry-Bey’s and Green’s complaint is not the only instance where an argument that, under the Fourteenth Amendment, tributes to white supremacy by their nature injure citizens in ways that violate the citizens’ Constitutional rights, has failed. In Payne v. Charlottesville, Charlottesville argued that the statute violates the Fourteenth amendment by sending a racist message to non-white residents of the city. Judge Richard E. Moore disagreed, stating from the bench, “I don’t think I can infer that a historical preservation statute was intended to be racist,” and, “Certainly, [racism] was on their minds, but we should not judge the current law by that intent.” What it means for racism to be on one’s mind in a non-racist way in this context something this author will continue to ponder.

The City of Birmingham did not present a Fourteenth Amendment argument centering the effects of white supremacy, and Norfolk did not either. If Norfolk had succeeded in its suit before Virginia passed its law allowing cities to remove confederate monuments, it would have marked the second successful lawsuit against a war memorial removal statute that did not include an argument like Perry-Bey’s and Green’s Fourteenth Amendment argument, and thus cities that initiate similar lawsuits might similarly leave out such arguments as well, and focus solely on the tried and true First Amendment argument.         

While the outcomes of these First Amendment cases might continue to result in the overturning of war memorial removal statutes, they would also represent a loss. That is the lost potential for legal recognition of the ways that odes to white supremacy have real effects—tangible and intangible, quantifiable and not—on the targets of the ideology, in ways that do indeed interfere with their right to life, liberty, and property. This loss would represent one of countless ways that our legal system fails people of color, specifically Black people here, by turning a blind eye to the effects of memorialized violence against them. 

If more cities begin filing complaints like Norfolk’s, courts will have the opportunity to allow local entities to begin to change their stances on the role of white supremacy in their public spaces. Norfolk’s complaint, Perry-Bey’s and Green’s complaint, and the judgment in Alabama v. Birmingham, all represent significant developments in a conflict that began at our nation’s founding, and in how local governments might use the First Amendment as a shield against states’ insistence that they continue to maintain symbols of racist violence. While this First Amendment shield might successfully challenge war memorial preservation laws, it also might preempt other arguments that would have validated the suffering caused by monuments to white supremacy, in ways that a First Amendment argument fails to do.

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