Twisted Totems - The Law of Statue Toppling

Published on 26 June 2020 at 23:17

The toppling of statues in the US recently has had a domino effect and knocked monuments around the world. This current trend began in 2017 with the controversy over the statue of Confederate General and folk hero Robert E. Lee. The legacy of Lee and what his visage represents has been the flashpoint for debate in the US over the past years. To some he is associated with white supremacy, neo Nazism and the ‘Lost Cause’ myth, the romanisation and nostalgia for the Antebellum South. To others he represents the hundreds of thousands of Confederate war dead and the epitome of the Southern hero.


On February 6, 2017, the Charlottesville City Council voted to remove the statue of Robert E. Lee in a city park. In response, the Payne v Charlottesville lawsuit was submitted to Charlottesville Circuit Court, centring on a Virginia statute which prevents the removal of war memorials.


August saw the Unite the Right rally, as various right-wing protestors gathered in Charlottesville to show support for the statue of Lee. Ensuing conflict saw the death of a counter protestor and the injury of 19 others in a car ramming attack. Following the rallies, Charlottesville Mayor Mike Signer reversed his earlier support for the monument and pressed for its immediate toppling:” With the terrorist attack, these monuments were transformed from equestrian statues into lightning rods. We can, and we must, respond by denying the Nazis and the KKK and the so-called alt-right the twisted totem they seek”.


Following this, the Council voted to cover the statue in tarps and when raised in Court, Moore J “did not find irreparable harm” in temporary shrouds on statues for the purposes of mourning but ruled they must be removed eventually. Ironically given current treatment of a Churchill statue in the UK, in response to the issue of the Council rendering the statue “not observable to the public”, Moore J replied that “they can’t put it in a sealed box”.


The Virginia law protects memorials to veterans, including expressly those of the "War between States". To this end, the Council argued that the average person would see the statue as a representation of the "Lost Cause" narrative rather than a Civil War memorial but Moore J rejected this insisting the average person would merely see Lee himself and the Civil War. The Council attempted to use an analogy of the "difference between a tank on the battlefield and a tank in a defiant neighbourhood in the former 'Soviet Bloc". Moore J held that claiming that a tank is military equipment in one instance and a symbol of oppression in another “does not make either of them not a tank".


The Council produced quotes from Lee on his view of race, but Moore J saw this “non-sequitur” as irrelevant and pointed out similar quotes could be attributed to Lincoln himself and the ubiquity of such views at the time does not "inform or help decide whether these statues in question are monuments or memorials to veterans of the Civil War.” Moore J ruled that the defendants had conflated what the statue actually is with the intentions of those who erected it and how they make people feel. "But that does not change what they are".


After finding that the Council acted ultra vires in voting the statue be taken down, Moore J granted a permanent injunction on October 15th, 2019 against the Council from removing, moving or indeed interfering with the statue.


A Confederacy case also reached the Supreme Court in 2015 with Walker v Texas, where the Court decided that the state of Texas could reject an application by the ‘Sons of Confederate Veterans’ group for custom license plates featuring the Confederate battle-flag. The Court held that license plates are clearly displays of state authority and are "essentially government IDs". They communicate messages from the State and thus are ‘government speech’. The government has discretion in its speech and the imagery of the Confederate flag is hotly contested; “The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War. To others, it symbolizes slavery, segregation, and hatred.”


This concept of ‘government speech’ was established in the case of Pleasant Grove City v Summum. Summum is a minor religion that began in the US in the 1970s. It draws upon ancient Egyptian beliefs, is based in a pyramid building in Utah and is noted for its practice of mummification


In 2008, Summum petitioned for the erection of a monument to the "7 Aphorisms", the central tenets of Summum in a local park. The park in question already had 11 monuments, many offered by private donors including one to the Ten Commandments. Pleasant Grove City rejected the application by clarifying that they only accepted monuments related to the city's history or from organisations with considerable ties to the community. Summum claimed that such a rejection violated Free Speech as the City had accepted previous religious monuments in the Ten Commandments.


The Court held that government speech is not private speech and in order to govern, government has to have the ability to say things. They were resolute that monuments constituted a form of the government’s communication; "Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power…a monument, by definition, is a structure that is designed as a means of expression."


The Court were also keen to highlight that monuments also almost never have a single, undisputable message. The intention or significance placed on a monument by a donor may differ from that of government. Acceptance of a monument is not an endorsement of a specific meaning a particular donor invests in the monument. Indeed, the interpretation of a monument changes over time as historical interpretations and society shifts. "Government decisionmakers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as aesthetics, history, and local culture". Government exercises selective receptivity when choosing which monuments to place in public areas such as parks but aren’t necessarily endorsing every interpretation of the monument. The Court found that parks can be used as a forum for private speech in the form of marches, speeches, leaflets, etc but permanent monuments are limited from a logistical point of view. Government is not in the position to grant monuments in such areas to every group who wishes to promote views so it must adopt selective authority in arbitrating such matters.


The legal landscape of this iconoclast phenomenon is muddled further by Heritage Protection Acts which protect public memorials. These acts have sprung up across the South since 2015 as the culture war has raged in America and Confederate statues have become flashpoints. The Alabama act introduced to “preserve the good bad and ugly of history” was accused of infringing Birmingham City’s free speech when Mayor William A. Bell attempted to conceal a monument to confederate soldiers in plywood. This move was overruled by the Alabama Supreme Court which found Cities are not entitled to individual's constitutional rights, such as freedom of speech. North Carolina's law has been accused of depriving legislative accountability, overreach into local authority and vagueness. Tennessee’s law has drawn ire for the difficulty it creates in removing a monument; 2/3rds of a historical commission, appointed by the Governor must vote to grant a waiver for the removal of a public monument. This is an effective immunity. Some suggest the addition of "truth plaques" to monuments which survive to contextualise the history of the monuments and to clarify what message they intend to convey.


This American phenomenon has made its way to Ireland with calls to remove relatively obscure statues of Seán Russell and plaques to Christopher Columbus. While the 1930 National Monument Act offers considerable protection to those features listed, (until the 2004 amendment to allow the government to build roads through monuments) it covers older structures such as burial mounds, castles, etc. Statues, plaques and other more recent features are classed as public art and are typically under the purview of the local government. The tamer situation in Ireland today belies the numerous statues of British and royal figures blown up and vandalised during Ireland’s turbulent journey to the modern day, most notably the most prominent public feature in the country at the time, Nelson’s Pillar. More recently, a campaign in Cork city has seen the vandalization of Cork street signs bearing royal names. Despite this however, Ireland has accepted its troubled history with relative serenity. The “royal” prefix still graces some institutions, characteristically British architecture takes pride of place in our cities and even the ‘Victoria Regina’, crown adorned Royal Mailboxes survived, albeit with a coat of green paint. It seems ultimately that the Irish people have sided with Yeats who argued after Nelson came crashing down:” The life and work of the people who erected it is a part of our tradition. I think we should accept the whole past of this nation, and not pick and choose.”

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