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The First Amendment This Week

Government can display Confederate monuments, but doesn’t have to

Civilizations build monuments to honor leaders and heroes.  They may celebrate local or national heroes, or seek to bind an empire (as do the many statues throughout the British Commonwealth to Queen Victoria).

A statue of Confederate Gen. Robert E. Lee is removed from the University of Texas campus, early Monday morning, Aug. 21, 2017, in Austin, Texas.  University of Texas President Greg Fenves ordered the immediate removal of statues of Robert E. Lee and other prominent Confederate figures from a main area of campus, saying such monuments have become "symbols of modern white supremacy and neo-Nazism."(AP Photo/Eric Gay, used with permission from The Associated Prss)

A statue of Confederate Gen. Robert E. Lee is removed from the University of Texas campus, early Monday morning, Aug. 21, 2017, in Austin, Texas. University of Texas President Greg Fenves ordered the immediate removal of statues of Robert E. Lee and other prominent Confederate figures from a main area of campus, saying such monuments have become “symbols of modern white supremacy and neo-Nazism.”(AP Photo/Eric Gay, used with permission from The Associated Prss)

On occasion, popular sentiments will result in the destruction of monuments, as when the statue of King George III was destroyed after the Declaration of Independence was read in New York City.  This is hardly an American phenomenon.  Russians destroyed many statues of Lenin and Stalin after the fall of the Iron Curtain, and Iraqis destroyed statues of Saddam Hussein after American troops captured Baghdad.

One complexity is that statues clearly commemorate the values of the time and place where they were constructed and thus might illumine the history of such periods.  Moreover, individuals may react differently to statues depending on their region, their race, or their historical understandings.  In a 2017 press conference in which he defended Confederate monuments, President Donald Trump observed that early presidents, including George Washington and Thomas Jefferson, were slaveholders, and yet most people do not think that their statues should be dismantled. 

Critics noted that such men (in contrast to Confederate leaders and generals) had worked to establish, rather than to destroy the nation.  They might further note that the historic sites of the homes of such presidents are increasingly weaving the stories of their slaves into the narratives of their lives.

Hundreds of southern towns, which have long renounced the institution of slavery, have generic representations of Confederate soldiers in town parks on town squares.  For many, they recognize the heroic sacrifice of ancestors for what they believed, which may have included anything from a desire to defend their homes, to a defense of states’ rights, and issues other than the perpetuation of slavery. Some may celebrate idealized versions of Confederate leaders who never actually existed or may recognize such leaders (General Robert E. Lee, for example) for attempting to heal the nation after the Civil War ended. 

Many of these statues to Confederate leaders were erected from 1890 to 1925, a time which marked the birth of Jim Crow segregation laws throughout the South, the suppression of black voting, and the rise of increased violence against blacks.  African-Americans who approached such statues on public property, especially in front of courthouses, may well have questioned whether they could expect the “equal protection of the laws” promised by the Fourteenth Amendment to the U.S. Constitution.  Similarly, African-American children attending a school named after a Confederate General, or a mascot designated as a rebel, might well wonder whether they will be equally accepted as white students.

Individuals are, of course, free under the First Amendment to construct memorials on private property.  There is a large statue to Confederate General Nathan Bedford Forrest in Nashville, Tennessee.  Forrest, a Tennessean who was generally regarded as a great tactician, also later founded the Ku Klux Klan.  While the private monument remains, there is renewed debate about whether a bust of General Forrest in the State Capitol Building (public property) should be retained.  Although the government has a legal right to display it, it is certainly under no legal obligation to do so, although it may have to follow certain legally specified procedures before it can remove it.

The issue came to a head in August 2017 when the city of Charlottesville, Virginia, home to the University of Virginia, which was founded by Thomas Jefferson, decided to remove a statue of General Robert E. Lee from a public park.  This decision led to a Friday night torch-light parade through the grounds of the University of Virginia by Neo-Nazis and members of the alt-right, who while ostensibly there to protest the statue’s removal (and who had a First Amendment right to protest), chanted Nazi and anti-Semitic slogans.  The next day, demonstrators and counter-protestors confronted one another in downtown Charlottesville, and one of the demonstrators, who appears to have Nazi sympathies, plowed his car through a group of counter-demonstrators resulting in the death of Heather Heyer.

President Donald Trump subsequently held a press conference in which he appeared to be criticizing all sides equally (Shear and Haberman, 2017).  This sparked further outrage and charges that he was morally equating those who had been violent and those who were not.  Protestors subsequently demolished a Confederate statue in Durham, North Carolina, and the mayor of Baltimore, Maryland ordered the removal of a number of Confederate memorials in the city.

Other proposed solutions have included simply leaving the statues as monuments to history, moving them to parks or museums where they can be placed in historical context, or adding disclaimers or other monuments (to, for example, former slaves) that would provide a wider context.

The case of Walker v. Texas Division, Sons of Confederate Veterans (2015) established that a state does not have to make its license plates a forum for the display of Confederate flags, but it did not mandate that they prevent it.  For now, at least, most such decisions are likely to be made at the state or local level.

Christopher Ingraham reports that Statuary Hall in the U.S. Capitol (where each state has designated two monuments) contains 12 statues of Confederate leaders, including Robert E. Lee and Jefferson Davis, and only four of African-Americans.

Dr. John R. Vile is a Professor of Political Science and Dean of the University Honors College at Middle Tennessee State University.

Can government prevent a public demonstration?

One of the first things they taught us in law school was the phrase, “maybe yes, maybe no.” So, let’s ask a question that’s making the rounds: Does the First Amendment protect your right to free speech? The correct answer is, maybe yes, maybe no.

Remember, the First Amendment prohibits the government from restricting free speech. It says nothing about Facebook, Twitter, Google or any other company. Within a few limits related to fair employment practices, private companies can pretty much restrict speech all they want. They can prohibit almost any kind of content they want. A company can even punish you for speech you make away from the workplace.

But. can a government entity, say a city or county, prohibit a group from marching or having a demonstration?

The answer is, probably not. The government can place a variety of restrictions on the march, but government officials simply cannot prohibit a march because they don’t like the content or what the marchers stand for.

These rules, though, do not apply to violent action. Speech, armbands, signs, marches and demonstrations are all protected. Violence is not.

Likewise, if the government officials can show there is a high probability of what is called “imminent lawless action,” then they may be able to ban the speech. But a countervailing argument is that if you don’t like the message, avoid the messenger.

Actually, I rather wonder, if the other side doesn’t show up, thus totally eliminating the possibility of violence, would the news media would even bother to cover the march or demonstration.

It’s particularly interesting to note that the demonstration in Boston last week was peaceful. So it will be difficult to argue that any time a particular group stages a march it will be accompanied by violence.

I’ve always heard that silence is golden. And I wonder, what if someone staged a march, and no one from the other side showed up?

Dr. Larry Burriss, professor of journalism at Middle Tennessee State University, teaches introductory and media law courses. At the graduate level he teaches quantitative research methods and media law.

Ninth Circuit poised to resolve major free speech issue in secret proceeding

Paul Alan Levy writing in the Consumer Law & Policy Blog notes that “[t]he United States Court of Appeals for the Ninth Circuit has issued an order signed only by the Clerk declaring that a significant free speech issue bearing on the rights of anonymous Internet users will be decided in a totally secret proceeding, involving sealed briefs, a sealed record, and without any help from would-be amici (including Public Citizen) seeking to explain the dangers posed by the proceeding.”

Paul Alan Levy of Public Citizen

“The case arises from a subpoena served by the United States on the employer-rating site Glassdoor, originally demanding identifying information about the owners of more than one hundred pseudonymous accounts that had, it appears, been used to post reviews of a particular employer whose contracting practices were subject to a federal criminal investigation. Over the past few years, Glassdoor has been one of the most aggressive companies demanding strong justification for civil subpoenas seeking to identify its users (considering how expensive legal services are, this company commitment earns it much credit in my book). Extending this approach to the criminal law context, Glassdoor refused to produce the information demanded by the grand jury subpoena, citing the First Amendment right of its users to speak anonymously.”

“In an effort to compromise, the government limited its production demand to eight specified reviewers. Glassdoor responded to that offer by proposing that it notify the users of the subpoena and provide identifying information for such of its users who were willing to be identified to the prosecutors. After the government rejected this offer, Glassdoor moved to quash the subpoena, invoking its users’ First Amendment right to speak anonymously which, Glassdoor contended, created a privilege against production of the information. At the same time, it notified its users of the subpoena, thus meeting one of the conditions of the Dendrite line of cases that it cited in its motion. Those cases rely on the First Amendment right to speak anonymously as a basis for posing procedural and substantive obstacles to civil subpoenas seeking to identify online speakers so that they can be served with process and sued for wrongful speech. Eventually, Glassdoor also invoked Bursey v. United States, a decision in which the Ninth Circuit quashed in part a grand jury subpoena directed at the process of publishing the newspaper of the Black Panther Party.”

“The entire subpoena litigation was conducted under seal, but we know some of the details because, having taken a contempt citation to secure its ability to appeal, Glassdoor next obtained the government’s stipulation for the partial unsealing of the briefs exchanges by the two sides on Glassdoor’s motion to quash. Glassdoor had appealed, and raised the possibility that parties beside itself might wish to provide the Court of Appeals with the benefit of their views of the applicable law. The trial judge granted that request; as a result the briefs supportingand opposing the Glassdoor motion to quash, as well as reply briefs both from Glassdoor and from the government, are available in the public record, as is the judge’s ruling on the motion. . . .”

[ht: Volokh Conspiracy]

Professor Ruthann Robson

Robson on New First Amendment Rulings

  • Ruthann Robson, Third Circuit: First Amendment Right to Record PoliceConstitutional Law Prof Blog, July 7, 2017 (In its opinion in Fields v. City of Philadelphia, the Third Circuit concluded that “Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.’  As the panel majority opinion by Judge Thomas Ambro noted, ‘Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public’; the Third Circuit joined ‘this growing consensus.’”)

→ Video of oral arguments in Third Circuit 

See also: Rebecca Tushnet, Court gags on Utah’s ag-gag law (July 13, 2017)

→ Related:  Press Release: Animal Legal Defense Fund Puts Wisconsin Hunting Statute in the Cross Hairs (“Today the Animal Legal Defense Fund filed a lawsuit in federal court aiming to strike down a recently amended Wisconsin statute which bans photographing, videotaping, approaching or even “maintaining a visual or physical proximity” to a hunter. The organization argues the law unconstitutionally restricts free speech and violates the First Amendment.”)

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