Shaping History: Monument-Toppling, Racial Justice and the Law

December 2, 2019

By Center for Art Law

Two years after the 2017 “Unite the Right” white supremacist rally in Charlottesville, including the terror killing of counter-protestor Heather Heyer, the culprit confederate statues of Robert E. Lee (Henry Shrady and Leo Lentelli, 1924) and Thomas “Stonewall” Jackson (Charles Keck, 1921) (the “Statues”) have been allowed to stay in situ. A judgment issued in September 2019 by Judge Richard E. Moore in the Charlottesville Circuit Court has given them the protection of the law by means of a permanent injunction against their removal.^[1] This holding overrides the 2017 Charlottesville City Council decision to remove the statues, which raises broad questions around the relationship between democracy, politics, and the law. But the less abstract issue, and one that illuminates important aspects of contemporary American society, is that of “monument-toppling,” an act whereby protestors try to physically take down a public monument in an act of activism.

The last few years have seen a growing mainstream discourse around race in America. The 2016 election proved to be a catalyst for much of this political energy. Several confederate statues across the country have been toppled (including Roger Taney in Maryland; Robert E. Lee and Albert Sidney in Johnston, Texas; and “Old Joe” in Florida), and other cultural works have been removed from public view, including Yale’s stained glass windows depicting a slavery scene in the dining hall of Calhoun College. Last summer, student protestors toppled the confederate statue of “Silent Sam” at the University of North Carolina, an event described by an alumna as a “joyous moment,” and by university officials as “unacceptable,” “dangerous,” “incomprehensible” and “unlawful.”^[2] Just this October, George Washington High School Alumni Association sued the San Francisco Unified School District Board of Education over its vote to remove a mural depicting slavery and genocide in the school. (Read more on New-Deal era murals here and here).

How does the law, in fact, regulate or restrict monument-toppling? In Charlottesville, the law used by Judge Moore to protect the confederate statues was a local law enacted in 1904, Va. Code § 15.2-1812, which protects “monuments or memorials for any war or conflict” from interference^[3]. In North Carolina, the relevant law is the Cultural History Artifact Management and Patriotism Act of 2015, signed by Republican governor Pat McCory in 2015, which prevents the removal or relocation of an “object of remembrance”^[4] without the approval of the North Carolina Historical Commission. Although these are different state laws, the underlying idea is the same – memorials or monuments that are deemed by the state to have politico-historical significance or value are to stay where they are.

What do these laws mean? Are they reasonable and constitutional? Are they neutral laws, only concerned with the objective preservation of a shared heritage, of beautiful sculptural works, of important historical memorials?

Historical Context

To contextualize the present dilemma, we must look back in time. Confederate monuments were erected at significant stages of American history, including the Jim Crow era (1870s to 1960s) and the civil rights movement (1940s to late 1960s). This timing is far from coincidental – the American Historical Association describes their erection during the Jim Crow era as “part and parcel of the initiation of legally mandated segregation and widespread disenfranchisement across the South”, intended “to intimidate African Americans politically and isolate them from the mainstream of public life.”^[5] These dates coincide with the devastating terrorist violence and murder perpetrated by the Ku Klux Klan and their ilk in Southern states. The statues’ erection during the civil rights movement served “similar purposes.”^[6] The Confederacy itself, which these monuments pay homage to, is not an apolitical historical event – it was an organization of several states that declared secession from the United States in response to a perceived threat to the institution of slavery. Its ideology, described in a speech in 1861 by Alexander H. Stephens, Vice-President of the Confederacy, was based “upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition.”^[7] According to many scholars and historians, confederate monuments were instituted as a deliberate assertion of white domination over Black lives – to either reinforce the white supremacist status quo, as in the Jim Crow era, or to resist legal threats to it, as during the civil rights movement.

The impulse to topple these monuments today, consequently, should be understandable in light of their history. And the redesigning of public space by means of effacing, destroying or relocating public symbols and monuments is a tradition that goes back centuries. Famously, the end of the Ba’ath dictatorship in Iraq was marked in mainstream media by the US army staging the toppling of Saddam Hussein’s bronze statue (April 9, 2003). Statues of Soviet leaders have been toppled in Ukraine (December 8, 2013), Romania (March 1990), Tajikistan (May 30, 2011), Ethiopia (May 1991), Hungary (October 23, 1956). A statue of Christopher Columbus was toppled in Venezuela in October 2004; student protestors in South Africa toppled a statue of colonialist Cecil John Rhodes in April 2015. Reevaluation has affected the city landscapes in America as well. As recently as 2018, a sculpture in J. Marion Sims was removed from New York City’s Central Park and moved to the place where the now infamous doctor is buried. There exists, therefore, a precedent for confederate monument-toppling.

Arguments Against Removal: Historical Memory

Opponents of monument-toppling often argue that the removal of the monuments amounts to an erasure of history. This is a point made by historians like Dr. Michele Bogart: these monuments may serve a useful purpose in reminding us of a dark past and they should be preserved, regardless of how ‘offensive’ they might be. But the question of how monuments convey history is a vexed one. As Waitman Wade Beorn, a Holocaust and genocide studies historian, notes, someone ignorant of this history of America might be “forgiven” for thinking that the confederates won, given the ubiquity of the monuments (about 1,500 in the US) and their heroic style.^[8] Wade Beorn also comments on the general scarcity of memorials to the people enslaved and victimized by the Confederacy. He observes that the “memorial landscape” in Germany – a country that has to grapple with a somewhat similar brutal white supremacist past – honors the victims.^[9] In Beorn’s opinion, memorials in Germany convey “loss, sadness and grief,”^[10] with historical context, meaning and thought.

Alternative: Contextualization

Consequently, confederate monument-toppling represents a rebellion against the way contemporary America chooses to remember its past. As an alternative to toppling, monuments could hypothetically be recontextualized, as Paul Cooper, author and journalist, points out.^[11] For example, one way in which the Robert E. Lee monument could accurately and meaningfully communicate America’s history is by relocating it to a museum, with real and holistic educational information alongside it.^[12] Another option would be to de-pedestalize it and surround it by images of the two hundred Black men who escaped slavery, joined the US Army & helped defeat Lee, as John Edwin Mason, a University of Virginia history professor, suggests.^[13] But this recontextualization would only be possible after an honest and fulsome reckoning with America’s past – a reckoning that would be “democratically agreed” by the country.^[14] The United States are not there yet: the current President Donald J. Trump recently described these confederate statues as “beautiful” and reflective of the “great culture of our country.”^[15] According to Susan Neiman, philosopher and writer, part of the reason Germany does not have nostalgic monuments to Nazis is due to its nuanced confrontation of its past.^[16] Until such a reckoning happens in the US, Cooper suggests these monuments will and should keep falling.^[17]

States Laws and Confederate Monuments

State laws step in to prevent exactly this, i.e. monument toppling. Alabama (2017),^[18] Mississippi (2013),^[19] North Carolina (2015),^[20] South Carolina (2012),^[21] Tennessee (2013, updated 2016),^[22] and Virginia (2017)^[23] have all passed state laws to obstruct, or, in the cases of Alabama and North Carolina, prohibit altogether, the removal or alteration of public Confederate monuments. To return to the questions previously raised, are such regulations neutral and sensible?

On the one hand, these laws are often written in a depoliticized manner, with no specific references to actual monuments, events, people or groups. There are general and facially inoffensive allusions to war, conflict and history. On the other hand, these statutes imagine confederate monuments as memorials, or solemn objects of remembrance, which ultimately sends a resonant political message about America’s history and the way it should be remembered. In this case, the communication takes the form of heroically memorializing white oppressors and fully obscuring Black victims.

Does this mean that preservation laws are totally irredeemable? The North Carolina Cultural History Artifact Management and Patriotism Act of 2015^[24] contains two exceptions to its bar against interference with monuments: (1) when appropriate measures are required by the State to preserve the object and (2) when relocation is necessary for public construction and other renovation works. One solution could be to add a further exception: when a democratic decision, such as a vote, has been made to remove or relocate the monument for historical, social, or political purposes. This would have given the 2017 Charlottesville City Council vote both political and legal weight.

Federal Law and Confederate Monuments

Federal jurisprudence presents more problems, however. The U.S Supreme Court in Pleasant Grove City v. Summum (2009) analyzed monuments in public parks as “government speech.”^[25] This means that the government speaks through them, and that this speech is protected from free speech challenges. Confederate monuments, therefore, falls into this category. This presents a troubling conclusion when the idea of the government speaking through monuments is combined with the reality of the confederate monuments’ intentional white supremacy. In Pleasant Grove, Justice Alito emphasizes the fluidity of monuments’ meanings as well as their interpretive quality, which mitigates the obvious implication that the government intends its speech to be racist.^[26] The government speech doctrine puts confederate statues outside the scope of free speech challenges. These monuments occupy a special and more protected position, legally and politically, than other forms of speech.

To reframe the conversation: is there any legal argument for the removal of these statues? The template for this would be a 2019 Alabama decision which, interestingly, turned the First Amendment conversation on its head. In State of Alabama v. City of Birmingham, Judge Michael Graffeo criticized the absence of a provision in the Alabama Memorial Preservation Act^[27] to remove monuments that convey a pro-Confederacy message.^[28] He analyzed the government speech doctrine as it relates to confederate monuments and concluded that a state law that “renders pro-Confederate speech immune from a [city’s] local political process that rejects a message of white supremacy”^[29] is denying a city its right to government speech. As such, the Constitution’s vision to protect “an open marketplace where ideas, most especially political ideas, may compete without government interference”^[30] is compromised, violating the First Amendment. This decision illuminates some contradictions within First Amendment law. It may seem somewhat dissonant that local communities are unable to make decisions regarding racist monuments in their public life, while the Ku Klux Klan may march freely, burning crosses and displaying swastikas, all with the full protection of the police.

Concluding Thoughts

The most difficult question of all is whether ‘legalizing’ monument-toppling would go anyway in challenging the social structures that underlie their protection now. Part of the power in monument-toppling appears to lie in its very illegality; the law is a tangible indicator of the ‘establishment’ that institutes contemporary white supremacy. If monument-toppling were legal and confederate monuments around the country were quietly removed without any real fuss around their meaning and history, it is confusing to imagine whether any proper confrontation of America’s past would actually occur. Further, historians and critical scholars underline that while minor legal reforms may occur, those often simply create an illusion of progress without actually reforming the status quo.

Society has complex ways of understanding its historical traumas and present-day injustices. We can look to public spaces to understand some of its consciousness and imaginations, regardless of whether our monuments are standing or whether they have fallen. The law cannot single-handedly change the social fabric of America, but it can be critically evaluated and located within a broader political context. The conversation around monument-toppling should not begin or end with the law, and one must look at the historic and contemporary injustice in America to fully understand its value.

---

References:

1. Payne v. City of Charlottesville, No. CL 17-145 (Va. Cir. Ct. Sept. 11, 2019). ↑
2. Jesse James Deconto and Alan Blinder, ‘Silent Sam’ Confederate Statue Is Toppled at University of North Carolina (New York Times, 21 August 2018) <https://www.nytimes.com/2018/08/21/us/unc-silent-sam-monument-toppled.html&gt; accessed 7 November 2019 ↑
3. Va. Code Ann. § 15.2-1812 (2017). ↑
4. Cultural History Artifact Management and Patriotism Act of 2015 § 3(c), 2015 N.C. Sess. Laws 170. ↑
5. American Historical Association, ‘AHA Statement on Confederate Monuments’ (American Historical Association, 28 August 2017) <https://www.historians.org/news-and-advocacy/aha-advocacy/aha-statement-on-confederate-monuments&gt; accessed 7 November 2019. ↑
6. ibid. ↑
7. Alexander H. Stephens, ‘Cornerstone Address, March 21, 1861’ in Franke Moore (ed.) The Rebellion Record: A Diary of American Events with Documents, Narratives, Illustrative Incidents, Poetry, etc. (vol. 1., New York: O.P. Putnam, 1862) 44 – 46. ↑
8. Waitman Wade Beorn, ‘U.S. put its Silent Sams on pedestals. Germany honored not the defeated but the victims.’ (Washington Post, September 11 2018) <https://www.washingtonpost.com/outlook/2018/09/11/us-put-its-silent-sams-pedestals-germany-honored-not-defeated-victims/&gt; accessed 7 November 2019. ↑
9. ibid. ↑
10. ibid. ↑
11. Paul Cooper, ‘What to Do With a Heinous Statue’ (Foreign Policy, August 17 2017) <https://foreignpolicy.com/2017/08/17/what-to-do-with-a-heinous-statue-trump-confederate-robert-e-lee-nazi-soviet/&gt; accessed 7 November 2019. ↑
12. ibid. ↑
13. John Edwin Mason (Twitter, 15 August 2017) <https://twitter.com/johnedwinmason/status/897469063747817473&gt; accessed 7 November 2019 ↑
14. Paul Cooper, ‘What to Do With a Heinous Statue’ (Foreign Policy, August 17 2017) <https://foreignpolicy.com/2017/08/17/what-to-do-with-a-heinous-statue-trump-confederate-robert-e-lee-nazi-soviet/&gt; accessed 7 November 2019. ↑
15. Jeremy Diamond, ‘Trump Calls Removal of Confederate Monuments ‘so foolish’’ (CNN Politics, August 17 2017) <https://www.cnn.com/2017/08/17/politics/trump-tweet-confederate-statues/index.htmll&gt; accessed 1 December 2019 ↑
16. Susan Neiman, ‘There Are No Nostalgic Nazi Memorials’ (The Atlantic, September 14 2019) <https://www.theatlantic.com/ideas/archive/2019/09/germany-has-no-nazi-memorials/597937/&gt; accessed 1 December 2019 ↑
17. Paul Cooper, ‘What to Do With a Heinous Statue’ (Foreign Policy, August 17 2017) <https://foreignpolicy.com/2017/08/17/what-to-do-with-a-heinous-statue-trump-confederate-robert-e-lee-nazi-soviet/&gt; accessed 7 November 2019. ↑
18. Ala. Code §§ 41-9-231, et. seq. (1975). ↑
19. M.S. Code § 55-15-81 (2013). ↑
20. Cultural History Artifact Management and Patriotism Act of 2015 § 3(c), 2015 N.C. Sess. Laws 170. ↑
21. S.C. Code § 10-1-165 (2012). ↑
22. Tenn. Code Ann. § 4-1-412 (2016). ↑
23. Va. Code Ann. § 15.2-1812 (2017). ↑
24. Cultural History Artifact Management and Patriotism Act of 2015 § 3(c), 2015 N.C. Sess. Laws 170. ↑
25. Pleasant Grove City v. Summum, 555 U.S. 460, 129 S. Ct. 1125 (2009). ↑
26. ibid, at 473-78. ↑
27. Ala. Code §§ 41-9-231, et. seq. (1975). ↑
28. State of Alabama v City of Birmingham, No. CV 17-903426-MGG (Ala. Cir. Ct. Jan. 14, 2019) (order nulling statute). ↑
29. ibid, at 6. ↑
30. N.Y. State Bd. of Elections v. Lopez Torres, 549 U.S. 1204 (2007). ↑

Additional readings:

• Olivia Taylor, ‘Art in the Courtroom: Dealing with New Deal-era Murals – Part I’ (Center for Art Law, November 18 2018) <https://itsartlaw.org/2018/11/15/art-in-the-courtroom-dealing-with-new-deal-era-murals-part-i/>
• Olivia Taylor, ‘Art in the Courtroom: Dealing with New Deal-era Murals – Part II’ (Center for Art Law, November 18 2018) <https://itsartlaw.org/2019/01/14/art-in-the-courtroom-dealing-with-new-deal-era-murals-part-ii/>
• Susan Neiman, ‘Learning from the Germans: Race and the Memory of Evil’ (2019)
• Dane Kennedy, ‘What Should We Do With Confederate Monuments?’ (American Historical Association October 30 2017) <https://www.historians.org/publications-and-directories/perspectives-on-history/october-2017/what-should-we-do-with-confederate-monuments>

Disclaimer: The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of the Center for Art Law or its members.