Va. city asserts free speech in suit to move ‘Johnny Reb’
NORFOLK, Va. — The city of Norfolk 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 Confederacy. The Council 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 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.”