Cities, Free Speech, and Confederate Statues.

• Author: Cunha, Bob

"A city has a right to speak for itself, to say what it wishes, and to select the views that it wants to express. ... [Birmingham] has the right to disassociate from apro-Confederacy message entirely." (1)

1. Introduction

   Birmingham, Alabama, has no Confederate history. (2) The City did not exist until 1871, six years after the Civil War's end. (3) Nevertheless, in 1905, Birmingham dedicated the Confederate Soldiers and Sailors Monument, a towering fifty-two-foot obelisk inscribed with the words of Jefferson Davis. (4) At the unveiling ceremony, the mayor declared that the monument memorialized the valiant defense of "our property"--including enslaved Black persons. (5)

   Monuments on city property are, by law, a city's speech. (6) In 2015, Birmingham--which was more than 70% Black--decided it no longer wished to communicate "messages of white supremacy." (7) The City claimed a First Amendment right to tear the monument down. (8) In response, the state legislature--77% white--passed the Memorial Preservation Act. (9) Alabama joined seven other Southern states to forbid local governments from removing Confederate monuments. (10)

   Can states compel cities to speak in support of the Confederacy? (11) Or do cities have a First Amendment right to free speech? (12)

   The Alabama Supreme Court ruled in favor of the State. (13) The court, like many scholars, relied on two legal doctrines to reject municipal free speech. (14) The Williams doctrine, established in 1933, declares that cities may not assert constitutional rights against their parent states. (15) The CBS principle, from 1973, maintains that the First Amendment does not protect government speech. (16)

   These doctrines are specious. (17) The United States Supreme Court has never adopted either the Williams doctrine or the CBS principle to deny a city's free speech claim. (18) In fact, the Court has sidestepped every municipal free speech claim it has ever faced. (19) Cities deserve a long-overdue reassessment of their First Amendment rights, rather than submitting to outdated dicta or unsettled case law. (20)

   This Note proposes a novel theory of municipal free speech. (21) The Supreme Court provided the spark in Citizens United v. FEC, (22) its controversial decision guaranteeing corporations' free speech. (23) While Citizens United does not directly address First Amendment rights for cities, the Court established a clarifying legal principle: "[Associations of citizens" have First Amendment rights, which they derive from the collective constitutional rights of individuals. (24) In other words, Citizens United protects groups of people--not corporate entities per se. (25)

   Cities are "associations of citizens." (26) They fit the Court's paradigm: men and women who associate in common cause and select leaders to speak on political issues. (27) Cities--even more than corporations--possess the vital traits of "associations of citizens" identified in Citizens United, (28) Under the Court's logic, cities embody the First Amendment rights of residents and thereby deserve constitutional protection. (29)

   Statutory history and common law support this argument. (30) Part II of this Note begins with a brief account of monument protection laws and Birmingham's unsuccessful First Amendment challenge. (31) Next, this Note explains why Birmingham's odds were so long: the muddled jurisprudence of municipal constitutional rights, including Williams and CBS. (32) Part II concludes with a summary of Citizens United and its theory of First Amendment rights for associations. (33)

   Part III proposes First Amendment rights for cities. (34) The doctrinal argument is propelled by the logic of Citizens United', under its authority, the Williams doctrine and CBS principle must yield. (35) Public policy analysis focuses on why municipal speech is necessary for healthy democracy--and why state censorship denies racial equity. (36)

   The implications of municipal free speech are far broader and more enduring than the controversy over Confederate monuments. (37) The statues themselves are a lost cause; they will topple whether or not the First Amendment provides leverage. (38) Long after the monuments disappear, however, cities will seek to communicate their political views in defiance of state censorship--on issues such as immigration reform, gun control, police misconduct, and tax policy. (39) Citizens, united, deserve a voice in democratic debate. (40)

2. History

   1. Monument Protection Laws

      Between 1890 and 1920, municipalities across the South erected more than 700 Confederate monuments on public property. (41) This era coincided with the rise of Jim Crow and the Ku Klux Klan; Southerners of all races understood that Confederate monuments were symbols of white supremacy. (42)

      Frederick Douglass denounced the statues as "monuments of folly" and "a needless record of stupidity and wrong." (43) In 1931, W.E.B. DuBois suggested an inscription: "Sacred to the memory of those who fought to Perpetuate Human Slavery." (44)

      1. Statutory Evolution

         Monument protection laws are largely a recent phenomenon, and they have two related goals. (45) First, these laws safeguard a pro-Confederacy narrative against rising opposition. (46) Second, they are a tool for supermajority white state legislatures to restrict the autonomy of predominantly Black urban centers. (47)

         The first state to enact a "statue statute" was Virginia. (48) In 1904, the State made it illegal to "disturb or interfere" with Confederate monuments. (49) Notably, the statute prohibited "authorities of [the] county" from removing any monuments--explicitly preempting local action. (50)

         Nearly a century later, as citizens began to voice opposition to Confederate symbols, monument protection statutes arose from political compromise. (51) In 2000, when South Carolina faced intense national pressure to remove the Confederate flag from its capital dome, the state legislature agreed, but demanded a concession in response: a statute specifying that Civil War memorials on public property could not be "relocated, removed, disturbed, or altered." (52) Georgia reached a similar compromise in 2001, when its legislature agreed to remove the Confederate battle symbol from the state flag in exchange for a monument protection law. (53)

         The next wave of such laws was reactionary. (54) In 2015, a white supremacist and Confederate enthusiast murdered nine black churchgoers in Charleston, South Carolina. (55) Two years later, white supremacists rallied at the base of a Confederate monument in Charlottesville, Virginia. (56) These events galvanized public opposition to Confederate symbols in predominantly Black cities, and Southern state legislatures acted to protect the monuments. (57) In quick succession, North Carolina, Tennessee, and Alabama enacted so-called "heritage protection" laws. (58)

         Still, public outcry against Confederate statues continued to intensify. (59) After weeks of unrest following George Floyd's killing in 2020, the Virginia legislature amended and effectively repealed its first-in-the-nation monument protection law. (60) Several other states, including Alabama, considered repeal. (61)

      2. State v. City of Birmingham

         Only three months after Alabama enacted its 2017 monument protection law--and three days after the "Unite the Right" rally in Charlottesville--the Birmingham municipal government erected plywood barriers to obstruct the public's view of the Confederate Soldiers and Sailors Monument. (62) "It's a monument to segregation. It's a monument to human bondage," the mayor declared. (63) Alabama promptly sued Birmingham for violating the Memorial Preservation Act. (64) The State demanded $25,000 per day until the plywood came down. (65)

         Birmingham claimed a First Amendment right to free speech, and the Jefferson County Circuit Court agreed. (66) The court cited Supreme Court precedent that a city-owned monument speaks for the city. (67) And a city may say whatever it wants. (68)

         The court ruled that the Memorial Preservation Act compelled pro-Confederacy speech, and the State may not legally "commandeer the City's property for the State's preferred message." (69) Likewise, Alabama violated the First Amendment by preventing "expressive disassociation" from a pro-Confederacy message--in other words, erecting a plywood barrier was itself constitutionally protected speech. (70) The court voided the Memorial Preservation Act. (71)

         Alabama appealed, and its brief was blunt: Birmingham's constitutional claims were "nonsensical and thus incapable of analysis." (72) Nevertheless, in State v. City of Birmingham, the Alabama Supreme Court analyzed more than a century of constitutional jurisprudence and based its decision on two doctrines. (73) First, the Williams doctrine prevents a city from possessing constitutional rights. (74) Second, under the CBS principle, the government may not assert First Amendment protection. (75) The Alabama Supreme Court unanimously overturned the lower court ruling and reinstated the Memorial Preservation Act. (76)

         Six months later--amid escalating protests--Birmingham ignored the decision, tore down the monument, and paid the State a $25,000 fine. (77) The Alabama Supreme Court could not save the monument, but State v. City of Birmingham highlighted the twin hurdles facing municipal free speech: Williams and CBS. (78)

   2. Municipal First Amendment Rights

      1. The Williams Doctrine

         Although American cities predate the United States by more than 150 years, the Constitution does not mention cities or grant them any rights. (79) The first modem case to address municipal constitutional rights was Hunter v. City of Pittsburgh (81) in 1907. (81)

         The Commonwealth of Pennsylvania decided to redraw the boundaries of its municipalities; when legislators eliminated Allegheny from the map, the City claimed violations of the Contracts and Due Process Clauses. (82) The Court was unpersuaded, holding that cities are merely...