Photo Credit: https://www.al.com/news/2019/11/alabama-supreme-court-says-birmingham-violated-historic-monuments-law.html.
By: Nicki Lawsen
Member, American Journal of Trial Advocacy
Background
In November 2019, the Alabama Supreme Court ruled that the Memorial Preservation Act is constitutional and reversed the lower court’s decision.[1] The case arose after the City of Birmingham ordered statues memorializing confederate soldiers to be covered with plywood.[2] Subsequently, the Alabama Attorney General’s Office filed a lawsuit alleging a violation of the Memorial Preservation Act, which protects against the removal, relocation, or altering of long-standing symbols of the Confederacy.[3] In response, attorneys for the City of Birmingham maintained that the law is “vague and ambiguous.”[4] After hearing both sides, Judge Michael Graffeo issued an order in January 2019 declaring the law unconstitutional and stating that “[a] city has a right to speak for itself, to say what it wishes, and to select the views that it wants to express.”[5] He then asserted that “[t]he state acknowledges that the city is generally free to engage in government speech . . . but explains that the act withdraws from the city the right to engage in a particular expressive message.”[6] Consequently, Judge Graffeo ultimately held that the Memorial Preservation Act “manipulate[s] the city’s speech for the illegitimate purpose of favoring certain content of viewpoints,” referring to the ordeal as a “content-based” restriction.[7] The Alabama Attorney General’s Office immediately filed an appeal.[8]
In November 2019, the Alabama Supreme Court reversed the trial court, upholding the constitutionality of the law and ordering the lower court to “enter an order declaring that the [city’s] actions constitute a violation,” while imposing a $25,000 fine against the city of Birmingham.[9] With respect to the City’s constitutional arguments, the Alabama Supreme Court stated that “the trial court erred by holding that the City has constitutional rights to free speech and due process of law” after the state maintained that “a municipality has no individual, substantive constitutional rights.”[10] In coming to this decision, the court relied on Williams v. Mayor & City Council of Baltimore.[11] In that decision, the United States Supreme Court held that “[a] municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator.”[12] Furthermore, the United States Supreme Court has also stated that “the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.”[13] Accordingly, the Alabama Supreme Court then came to the conclusion that a governmental entity’s ability to speak does not confer the rights and protections included in the Free Speech Clause.[14]
Is the Memorial Preservation Act Constitutional?
The primary issue at hand in comparing the trial court’s decision with the Alabama Supreme Court’s is one of standing. In other words, can the municipality of Birmingham assert free speech protections against the state of Alabama? While the Alabama Supreme Court heavily rested on Williams and Summum, it did not acknowledge a more recent United States Supreme Court case, Citizens United v. Federal Election Commission.[15] In that case, the Court held that the First Amendment protects for-profit corporations, which happen to be organized under state law.[16] Going by that application, precluding municipalities from having the same free speech protection constitutes discrimination on the basis of the speaker—which is vehemently rejected by the Court.[17] Consequently, it is possible for a municipality to bring an action against a state for First Amendment violations.
Assuming arguendo, however, that a municipality is denied the right to assert First Amendment protections against a state, the next avenue to challenge a state statute would be through a class action by the residents of the city of Birmingham. To do so in state court, the residents must show that they have standing, which is defined as having “sustained or will sustain direct injury or harm and that this harm is redressable.”[18] While it is unlikely that the placement of monuments could cause physical injury to the residents, the definition of injury could also involve damage to reputations as well.[19] For instance, the city of Birmingham has a population that is almost 71% Black or African American.[20] Considering that the monuments called into question serve as Confederacy memorials, it is possible that an argument could be made that such establishments negatively affect individual reputations, as they serve as a reminder of slavery times. Current Birmingham Mayor Randall Woodfin stated that “a monument erected in defense of slavery in the [fourth] blackest city in America” is “the exact opposite of progress.”[21] Nonetheless, whether or not individuals will actually be able to challenge the constitutionality of the Memorial Preservation Act in a class action remains to be seen; however, the requirements of standing seem to facially be met.
The second issue that arises is whether the placement of monuments by a state constitutes governmental speech. The Supreme Court has made clear in its previous rulings that the Free Speech Clause restricts government regulation of private speech, not government speech.[22] However, the government speech doctrine is not the only doctrine that falls within the First Amendment; rather, the compelled speech doctrine serves as an exception to government speech’s immunity.[23] Basically, the doctrine does not allow the government to force others to speak for it.[24] The question now becomes under which doctrine does the enactment of these monuments fall?
The government speech doctrine essentially allows state actors to speak about topics relating to their goals and ideas without facing the scrutiny provided by First Amendment protections.[25] The rationale behind this is that government speech does not impede on the rights of private citizens to speak their minds nor does it preclude said citizens from demanding change by the government.[26] In 2006, the Supreme Court ruled that a city’s decision to reject a monument for placement in a public park was merited on this doctrine.[27] Taking this standard, the city of Birmingham could have a plausible avenue to challenge the placement of the monuments being that their refusal constitutes government speech.
Moving on to the compelled speech doctrine, this precludes a state actor from mandating a citizen to promote the government’s message.[28] The rationale behind this doctrine is that the government is no longer the speaker; rather, it is requiring the citizens to promulgate its message.[29] To illustrate, in Wooley v. Maynard, the United States Supreme Court held that the display of a state motto on license plates was compelled speech because the government required the display.[30] The Court asserted that “[t]he First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable.”[31]
On the other hand, the Tenth Circuit reached a different conclusion in the similar case of Cressman v. Thompson.[32] In that decision, the court explained that a depiction of a Native American shooting an arrow into the key on a license plate did not fall under the compelled speech doctrine because there were multiple interpretations of the design and that an offensive one was not reasonable.[33] However, Cressman differs from the case at hand involving Birmingham because an objectional message found in the display of Confederate monuments in a predominantly Black city is a reasonable and likely interpretation.
Conclusion
Given the previous case law, it appears that the city of Birmingham could likely still have an avenue to challenge the constitutionality of the Memorial Preservation Act, even in the wake of the Alabama Supreme Court’s ruling. Nevertheless, given the current state of the law, whether or not further action is taken remains to be seen. Either way, the ultimate conclusion of this debate will prove to be stimulating.
[1] Mike Carson, Alabama Supreme Court Upholds Confederate Monument Law, AL.Com (Nov. 27, 2019), https://www.al.com/news/2019/11/alabama-supreme-court-says-birmingham-violated-historic-monuments-law.html.
[2] Id.
[3] Ivana Hrynkiw, Judge Rules Alabama Confederate Monument Law Is Void; City of Birmingham Didn’t Break the Law, AL.Com, https://www.al.com/news/birmingham/2019/01/judge-rules-alabama-confederate-monument-law-is-void-city-of-birmingham-didnt-break-the-law.html (last updated Jan. 16, 2019).
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Brakkton Booker, Confederate Monument Law Upheld by Alabama Supreme Court, NPR (Nov. 27, 2019, 4:46 PM), https://www.npr.org/2019/11/27/783376085/confederate-monument-law-upheld-by-alabama-supreme-court.
[10] State v. City of Birmingham, No. CV-17-903426, 2019 WL 6337424, at *6 (Ala. Nov. 27, 2019).
[11] Id. (citing Williams v. Mayor & City Council of Baltimore, 289 U.S. 36 (1933)).
[12] Id. (quoting Williams, 289 U.S. at 40).
[13] Id. at *7 (emphasis omitted) (quoting Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 464 (2009)).
[14] Id. at *9.
[15] 558 U.S. 310 (2010).
[16] Id. at 365.
[17] Id.
[18] Standing, https://www.law.cornell.edu/wex/standing (last visited Feb. 26, 2020).
[19] Injury, https://www.law.cornell.edu/wex/injury (last visited Feb. 26, 2020).
[20] Birmingham, Alabama Population 2020, http://worldpopulationreview.com/us-cities/birmingham-population/ (last visited Feb. 26, 2020).
[21] Randall Woodfin (@randallwoodfin), Twitter, https://twitter.com/randallwoodfin/status/1227627255423258624?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed&ref_url=http%3A%2F%2Fabc3340.com%2Fnews%2Flocal%2Fbirminghams-mayor-criticizes-alabama-law-protecting-confederate-monuments (last visited Feb. 26, 2020).
[22] See generally Summum, 555 U.S. 460 (2009).
[23] Ellen Hunt, Note, What is a Confederate Monument?: An Examination of Confederate Monuments in the Context of the Compelled Speech and Government Speech Doctrines, 37 Law & Ineq. 423, 430 (2019) (citing The Curious Relationship Between the Compelled Speech and Government Speech Doctrines, 117 Harv. L. Rev. 2411, 2412 (2004)).
[24] Id. at 430-31.
[25] Id. at 431.
[26] Id.
[27] Garcetti v. Ceballos, 547 U.S. 410, 421-22 (2006).
[28] Wooley v. Maynard, 430 U.S. 705, 717 (1977).
[29] Id.
[30] Id.
[31] Id. at 715.
[32] 798 F.3d 938 (10th Cir. 2015).
[33] Id. at 964.
American Journal of Trial Advocacy 