NORFOLK, Va. (AP) — Norfolk, Virginia, can relocate a Confederate monument despite a state law barring the removal of war memorials, the city's top prosecutor and the state's attorney general argue in a lawsuit.
Photo credit: WVEC
The two filed a motion Tuesday seeking to dismiss a city lawsuit filed against them that says the state law infringes on its right to free speech. Norfolk Commonwealth's Attorney Greg Underwood and Attorney General Mark Herring said in court documents that they don't believe the law applies to the 80-foot (25-meter) monument in Norfolk's downtown and that they wouldn't try to enforce it.
All parties "agree that the City may remove the Monument," said the motion, which also notes that Underwood and Herring support its removal.
The filing marks the latest development in a series of legal fights and other efforts around the state to remove or relocate memorials to Confederate leaders or other symbols of the old South. The long-running debate gained new momentum after a white nationalist rally in Charlottesville two years ago descended into violence and a car attack left a woman dead.
What happens next with Norfolk's monument, which includes a statue of a Confederate soldier nicknamed "Johnny Reb" as well as the seal of the former Confederacy, wasn't immediately clear Wednesday.
City attorney Adam Melita said his office was reviewing the filings and "we really do not have any comment for the public at this time."
University of Virginia law professor Richard Schragger, whose work includes a focus on the intersection of constitutional law and local government law, said he didn't think it was entirely clear that the city could proceed with removing the monument.
The state law at issue has a provision allowing private parties to enforce it, meaning removing the monument could open the city up to lawsuits by outside groups, Schragger said.
The 1904 law that makes it unlawful to "disturb or interfere with" memorials for war veterans initially applied only to counties but was expanded to include all localities in 1997. In 2017, Herring issued an opinion that said the law didn't apply retroactively to statues erected before the law's expansion.
The Norfolk monument, which the City Council voted to move to a cemetery, went up in 1907.
Charles "Buddy" Weber, a Charlottesville attorney who is among the plaintiffs in a lawsuit against that city over its plans to remove two Confederate monuments, noted a judge in that case ruled differently on the retroactivity issue.
"The question is, who has the final say on that? And it's not the attorney general," said Weber, who added that he thinks the issue eventually will be settled by the Supreme Court of Virginia or state lawmakers who could decide to amend the statute.
Previous attempts by Democrats in the Republican-led General Assembly to do so have been unsuccessful.
In the Charlottesville case, the city has signaled that it will appeal to the state Supreme Court once a circuit court judge delivers his ruling on the final outstanding issue, attorneys' fees.
Virginia has more Confederate monuments on public property than any other state but Georgia, according to a survey by the Southern Poverty Law Center. But the debate over the symbols has also unfolded across the country. Some see the monuments as historical artifacts that should remain untouched while others say they glorify the South's racist past.
Aug. 20, 2019
The city of Norfolk, Virginia, is claiming in a lawsuit that its free speech rights are being violated because a state law won't let it remove an 80-foot Confederate monument from its downtown.
Norfolk's lawsuit employs a relatively novel and untested legal strategy in the federal court system for trying to remove a Confederate monument, legal experts say. The main legal question in this case is whether cities have free speech rights.
The city filed suit Monday in a U.S. District Court in Norfolk and targets a Virginia law that prevents the removal of war memorials. The suit claims infringement of the First Amendment because the city is being forced to project a message it no longer supports.
"The purpose of this suit is to unbuckle the straitjacket that the commonwealth has placed the city and the city council in," Norfolk argues in its complaint. "Because the monument is the city's speech, the city has a constitutional right to alter that speech, a right that the Commonwealth cannot take away."
Norfolk owns the monument, which includes a statue of a Confederate soldier nicknamed "Johnny Reb" as well as the seal of the former Confederacy. Council members voted in 2017 to move the monument to a cemetery.
Built in 1907, the monument was one of many erected across the southern United States between 1890 and 1919, well after the Civil War's 1865 conclusion. The Reconstruction era had ended. And an interpretation of that war that historians call the Lost Cause had emerged that romanticized the South and de-emphasized slavery.
The defendants in Norfolk's suit are the state of Virginia, state Attorney General Mark Herring and Norfolk Commonwealth's Attorney Gregory Underwood. The offices of Herring and Underwood did not immediately respond to emails seeking comment.
University of Virginia law professor Richard C. Schragger said Norfolk's lawsuit makes a relatively "novel legal claim that hasn't been tested in federal court yet."
Schragger said Tuesday that there is legal precedent for the free speech rights of private corporations. But he said on the federal level, "it's not entirely clear that a city can bring a First Amendment claim against a state."
However, a similar argument was made recently in a state court in Alabama.
In January, Jefferson County Circuit Judge Michael Graffeo ruled that Alabama's 2017 law against removing public memorials violated the free speech rights of local communities. The ruling was stayed in February by the state Supreme Court pending an appeal.
Various legal strategies have been employed in recent years to circumvent state laws protecting Confederate monuments. For instance, the city of Memphis, Tennessee, used a legal loophole in 2017 that involved selling city parks to a private nonprofit. It then removed confederate statues, including one of Confederate president Jefferson Davis.
But the city of Charlottesville, Virginia, is still in a long-running legal battle involving its efforts to remove statues of Stonewall Jackson and Robert E. Lee. A Virginia judge issued a pre-trial ruling in April that said the statues are war monuments protected by state law.
The city's proposed removal of the Lee statue was a focal point of a white nationalist rally in 2017 that left one woman dead and several injured after a white supremacist drove his car into a group of counter protesters.
B. Frank Earnest, heritage defense coordinator for the Virginia Division of the Sons of Confederate Veterans, warned Tuesday that Norfolk's federal lawsuit could make any war memorial vulnerable to removal.
He pointed to one that honors Gen. Douglas MacArthur that's also in downtown Norfolk.
"You can walk up to any monument and say I don't like that war monument," he said. "Japanese Americans may say they don't like World War II monuments. Think about how unpopular the Vietnam War was."