Va. city as­serts free speech in suit to move ‘Johnny Reb’

The Morning Call - - NATION & WORLD - By Ben Fin­ley

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.”

VIRGINIAN-PI­LOT 2015

Nor­folk’s City Coun­cil wants to re­move the 80-foot Con­fed­er­ate mon­u­ment.

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