/ [by Justin Greenlee, PhD candidate in the Joint Graduate Program in Art & Architectural History at the University of Virginia]
/Encouraged to hear about Judge Michael Graffeo's ruling regarding the Confederate Soldiers and Sailors Monument in Birmingham, Alabama. The decision was passed down just a week ago Monday, 1/14/2019 (you can find it here).
/ Some background: The judge's decision pertains to a case brought by the State of Alabama vs. the City of Birmingham and its current mayor, Randall Woodfin. At issue was a plywood screen that the city put around the base of a Confederate monument in Linn Park at the center of the city.
/ Lots of news coverage (one example by Ian Stewart at NRP, published the day after the decision on 1/15/19 and another from Brentin Mock at CityLab from 1/16/19).
/ The State argued that the City's actions violated Alabama Code § 41-9-232(a) (1975), which states that "No architecturally significant building, memorial building, memorial street, or monument…
/ “…which is located on public property and has been so situated for 40 or more years may be relocated, removed, altered, renamed, or otherwise disturbed” (the monument went up in 1905; click here for the Alabama Code).
/ It appears that ALA CODE § 41-9-232 is the result of the Alabama Memorial Act of 2017 (and you can view my annotations of the related AL SB60 here; only visible in Chrome).
/ The crux of their argument, as summarized on page 2 of the judge's ruling, is that "an Alabama municipality [meaning a city or town] is a mere instrumentality of the STATE" and as a result "the STATE can restrict the CITY's power to express its disagreement with the ACT" (source; .pdf page numbers given from this point).
/ In his finding Judge Graffeo draws attention to the fact that the power of the State is not unassailable and thus subject to constraints (.pdf 2).
/ He notes that the U.S. Supreme Court never granted states "plenary power to manipulate in every conceivable way, for every conceivable purpose, the affairs of its municipal corporations" (.pdf 2).
/ This raises a few key questions: 1) did the State of Alabama overstep its authority by insisting the City of Birmingham remove the wooden screen?; 2) did the State infringe on the City's right to freedom of speech in so doing?; and 3) is the speech of a city protected in the same ways as that of an individual?
/ The answer to the third question is "yes," according to the judge. The State cannot infringe on a city's legally protected (1A) right to free speech nor its (14A) right not be deprived of its property without due process of law.
/ As to the first two questions, Judge Graffeo concludes that the Alabama Memorial Act does, in fact, infringe on the rights of the City.
/ He writes, "In short, under any reading of the ACT, there is simply no way, no process, no procedure available for the CITY to petition for relief to do anything to the Monument despite how much it does not want to be perceived as honoring what it honors" (pdf. 4).
/ He continues, "Thus, the ACT establishes absolute control and final authority over the content of the message, i.e., homage to the Confederacy. A city has a right to speak for itself, to say what it wishes, and to select the views that it wants to express" (.pdf 4).
/ The ruling goes on to cite examples of States that tried to infringe on cities' rights and their "expressive conduct," in particular (.pdf 5).
/ The judge also writes that the State cannot make "pro-Confederate speech immune from a local political process that rejects a message of white supremacy," though this is precisely what the Memorial Act seeks to do (.pdf 6).
/ The judge reiterates the City's 14A rights, which are a key concern because of the $25,000-a-day fine that the State wished to impose on the City (and also the threat to property involved in their petition to remove the wooden screen).
/ On the last page Judge Graffeo rules the Memorial Preservation Act "VOID, and of NO legal effect or authority." He grants the city's motion for summary judgement. The City/ mayor will not suffer any fines. The wooden screen around the monument can remain in place (.pdf 10).
/ What does all of this mean for monuments in the state of Virginia? It's important to remember that when it comes to Monument Avenue in Richmond the city owns every statue and bit of land except those related to General Lee (both the statue and its plot were donated and accepted by the Commonwealth in 1889).
/ So like the Confederate Soldiers and Sailors Monument in Birmingham, four out of five monuments on the Avenue are city property. And the city is not powerless when it comes to its property.
/ Yes, Alabama is a “home rule” state, whereas Virginia is subject to the Dillon Rule (in a nutshell, the Dillon Rule states that local governments in the state of Virginia have limits on their authority, with many decisions ceded to the General Assembly).
/ And yes, there is Code of Virginia § 15.2-1812 -- the most famous of all monument laws in our region -- that contains "disturb or interfere with" language when it comes to war memorials, including those between the so-called "War Between the States" (source).
/ And yes, § 17.05 of the Charter of the City of Richmond (2015), which deals with control of monuments and other works of art, states: "It shall be the further duty and function of the commission to preserve historical landmarks…”
/ “… and to control the design and location of statuary and other works of art which are or may become the property of the city, and the removal, relocation and alteration of any such work" (source).
/ But one basic fact remains: neither the Dillon Rule, VA Code § 15.2-1812, the City Charter/ master plan, nor a NHL designation can inhibit freedom of speech in the state of Virginia.
/ (If you are interested in revisiting the legal obstacles to altering or removing Confederate statues on Monument Avenue you can re-read City Attorney Allen Jackson's statement from November 14, 2017, included in the final Monument Avenue Commission report; source).
/ The purpose of the City Attorney's memorandum needs to be clarified, however. In reading the statement closely, it is clear that the author's goals are to clarify local and state laws regarding monument preservation and to highlight any possibilities for litigation when it comes to potential changes on the Avenue.
/ He does his job very well. But in presenting an archive of obstacles the author says nothing about what moral obligations we have as citizens and what can be done for the sake of racial conciliation in the city of Richmond.
/ And we should also note the City Attorney's caution in writing that no recontexualization of the statues should hinder "the ability of reasonable people to view them" (.pdf 48), a suggestion that should be questioned following the decision in Birmingham.
/ The debate over monuments and memorials in Alabama and Virginia are unique but not isolated. And it is important to note that Judge Graffeo draws on federal case law established by the US Supreme Court (including Pleasant Grove City v. Summum, 2009; source) when making his decision on the plywood screen around the Soldiers and Sailors monument.
/ It has been pointed out that Pleasant Grove is thinly litigated, to this point, but the decision in Birmingham is now part of a long process to apply the federal ruling state-by-state.
/ In conclusion, the statement of the City Attorney from 2017 has been treated with great respect, to this point. As it should be. But it is not the last word.
/ We know that the statues on the Avenue are monuments to white supremacy. We know that they are powerful works of art whose production and placement contributed to racial segregation in the city Richmond. We also know that they continue to intimidate, today.
/ If the City of Richmond wants to bring about change when it comes to Monument Avenue WE CAN MAKE IT HAPPEN. We just need to have the courage to exercise our first amendment rights and be willing to engage in the process of litigation.
/ It may take 10 years to bring about change but it has already begun with community organizers, municipalities, City Counselors, and legislators who have a strong commitment to working towards racial equity in our public spaces.
/ For example, a long court battle is already taking place in Charlottesville, VA related to the statues of Lee and Jackson (you can find news coverage from the past week in The Daily Progress here).
/We should pause at this important moment, then, to realize that the impact of the ruling in Birmingham could be nation-wide.
/ The question for the community is: where do we go from here? As Mayor Stoney has said, this is not an "either/or proposition." We need not be derailed by a "culture of can't" when it comes to funding our educational system or dealing with the legacies of slavery in our city (source).
/ As Judge Graffeo notes, "A city has a right to speak for itself, to say what it wishes, and to select the views that it wants to express" (.pdf 4).