We watched in horror as the events in Charlottesville unfolded over the weekend of August 11-13.  One of the first questions that occurred to us was why the local officials in Charlottesville had not yet removed the statue of Robert E. Lee that stood in Emancipation Park.  The City Council had voted to remove it in February, 2017.  Why was it still there six months later, standing as an object of protest and counter-protest?

The answer turned out to be a Virginia state law that prohibits local officials from removing war memorials. Under that statute, a local judge has blocked the removal of the Lee statue for six months, while the legal issues in the dispute are being resolved.

Virginia is not alone in having a state law that blocks local authorities from removing monuments that their localities have erected.  Most of the southeastern states have such laws, and several of these anti-removal laws have been enacted or strengthened in recent years. The states that have legislated to make monument removal difficult or impossible include Kentucky, Tennessee, North Carolina, South Carolina, Georgia, and most recently, Alabama, which enacted its law in the spring of 2017.  The Alabama law explicitly gives greater protection to monuments that are more than forty years old.  Many of the laws require some state lawmaking body, either the legislature itself or a state commission, to approve any local effort to remove a monument.

This surge in state laws is without question designed to protect monuments to the Confederacy.  As this chart shows, many of them were erected in the periods between 1890-1920 and 1950-1965.  These were periods of strenuous southern reaction to political movements toward racial equality.  The monuments are not simple remembrances of the Confederate soldiers and generals.  Instead, they are ideologically inspired, aimed at establishing and reinforcing concepts of white supremacy. The urge to enact or strengthen anti-removal laws thus can be understood only as a response to increasing political revulsion against the slavocracy and notions of white supremacy that Confederate monuments symbolize.

These anti-removal laws are deeply objectionable on at least two levels.  First, they stifle each locality in its decision-making about what objects to venerate.  Each community should have authority, subject to Establishment Clause limits, to create or remove monuments on its own public property and within its own borders. We all recognize instantly that the people of Dallas or Chicago should not dictate what should be held in high esteem to the people of New York or Birmingham.  Similarly, as we are sure every state would agree, the federal government should not dictate to states what to venerate on state property. State interference in local removal decisions is as objectionable as federal interference in analogous state decisions.

Second, these state anti-removal laws violate the First Amendment.  In the context of the campaign to remove pro-Confederate monuments, the laws are an attempt to suppress a particularly powerful form of protest against the symbolic content of the monuments.  Accordingly, they run afoul of the Free Speech clause, as elaborated in Texas v. Johnson and United States v. Eichman, the Supreme Court’s decisions about flag burning.  Those cases rest on two, related propositions. First,  destroying a flag can be done for expressive reasons, and hence qualifies as speech.  Second, because that speech does not inflict any material harm on others, the state has no legitimate interest in suppressing it.

To be sure, the state interest in protecting the symbolic value of flags is not identical to its interest in the protection of public monuments.  Indeed, the statute involved in Texas v. Johnson included “public monuments” as well as burial places, and state or national flags, and the ruling does not extend to monuments.  Unlike a monument, the flag can be replicated an indefinite number of times. The constitutional right to be free of restrictions on flag burning thus does not extend to burning a particular flag that belongs to someone else, including one that belongs to the government. Thus, we are not arguing that anyone, acting on their own, has a constitutional right to remove, vandalize, or deface existing monuments -- to Robert E. Lee, Jefferson Davis, Abraham Lincoln, or anyone else.  To recognize such a right of private action is to invite everyone to take the question of public respect for historical figures into their own hands.

Nor are we arguing that the state is forbidden from engaging in pro-Confederate speech.  The state is entitled to choose and broadcast its own message, even if the message is obnoxious to a number of its people.  Some citizens like Confederate monuments; others prefer symbols of respect for civil rights leaders like Martin Luther King, Jr.  The state may sponsor neither, either, or both.  History will judge which states have made the morally correct choice.

Our argument is more subtle but no less powerful than the argument that prevailed in the flag burning cases.  Burning a flag is “speech” only if intended and perceived as such.  Similarly, urging local authorities to remove a Confederate monument generally involves core political speech by the affected citizenry, as was the case in Charlottesville.  And a vote by local authorities to act on that urging is an expression of local political sentiment and will.  For a state to block the expression of that political will by barring the removal of the monument is to put the state’s coercive weight on the expressive scales.

When the state blocks local expressive action of this kind, it protects the state’s pro-Confederacy views against competition from contrary views, powerfully expressed by a local removal decision.  What makes the anti-removal laws different from most state laws that pre-empt local decisions – for example, in setting a minimum wage – is that anti-removal laws protect no material interests of the state’s people other than avoiding offense to those who want to perpetuate the illusion of an unjustly “Lost Cause.”  Just as in the case of flag desecration laws, avoiding offense is not a sufficient reason to stifle expressive conduct, including monument removal through orderly processes.  As is also evident in these statutes’ uniform use of “War Between the States” to name the Civil War, the state’s asserted interest in “heritage protection” is just a euphemism for entrenching a white supremacist ideology over competing views.  That is the essence of the First Amendment violation worked by anti-removal laws.

Each political community – federal, state, and local – should have presumptive political autonomy to decide whom to venerate.  States that block local decisions about local monuments violate that autonomy, and violate the First Amendment as well. These state laws should be repealed, but we hold out little hope that legislatures will do that.   The only remaining alternative is for courts to strike them down.

We expect that many of our readers will wonder if cities and other units of local government have “First Amendment rights” against their own states.  As a matter of substance, we think the question is misplaced.  Unlike some constitutional provisions, such as the Second and Fourth Amendments, which confer rights directly on the people, the focus of the Free Speech Clause is entirely on what government may not do. The Free Speech Clause bars government from interfering in the market of information and ideas unless government has a constitutionally acceptable reason for doing so.  As we explain above, state governments do not have such a reason for their anti-removal laws.

Whether units of local government, creatures of state law, are free to sue their own states to vindicate constitutional values is a separate and perhaps more difficult question.  In any event, we believe that the residents of an affected city or town, including Charlottesville, would have standing to bring such a suit, because an anti-removal law also burdens the people’s rights to speak out effectively to their local officials.  Such a suit might be brought under the Free Speech Clause, as well as the First Amendment clause protecting the right “of the people . . . to petition for the redress of grievances.”  Under either provision, the anti-removal statutes undoubtedly trap local residents, as well as municipalities, in the white supremacist message that the state has taken extraordinary steps to entrench through such legislation.  

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