City workers covered the Confederate Soldiers and Sailors Monument in Birmingham's Linn Park with plywood in August 2017.

Court Strikes Down Alabama Law to Protect Confederate MonumentsJanuary 17, 2019

On Monday, the Jefferson County Circuit Court ruled against the State of Alabama in the first lawsuit filed under the Alabama Memorial Preservation Act of 2017, declaring the law "void and of no legal effect or authority" because it violates the First and Fourteenth Amendments to the Constitution.

The Alabama Memorial Preservation Act was passed to prevent communities from addressing racially insensitive memorials, symbols, and monuments after Alabama removed the Confederate flag from the capitol grounds in 2015, following the killings of African American worshippers in a Charleston church by a young white man who embraced Confederate iconography. 

In August 2017, the mayor of Birmingham, Alabama, ordered the covering of the Confederate Soldiers and Sailors Monument located on city property in Linn Park. The Attorney General sued, asking the circuit court to declare that the city had violated state law and to impose a $25,000 fine for each day the monument is covered.

Alabama's largest city, Birmingham has long had a majority African American population, as well as a majority African American elected mayor and city councilors. "The democratic process here flew into motion after the people of Birmingham witnessed race-based violence across the South and decided, through their elected officials, to reject a message of African American inferiority," the court explained. 

After a hearing and extensive briefing, the circuit court found that "[i]t is undisputed that an overwhelming majority of the body politic of the City is repulsed by the Monument."

"Despite the City's desire to reject a pro-Confederacy message," the court wrote in its order, the State argued that the City cannot do so because the Act "establishes absolute control and final authority over the content of the message, i.e., homage to the Confederacy." In other words, the State's "position is that the Act renders pro-Confederate speech immune from a local political process that rejects a message of white supremacy."

"This cannot be," the court concluded, because under the Constitution "[a] city has a right to speak for itself, to say what it wishes, and to select the views that it wants to express." That means that Birmingham "has the right to disassociate from a pro-Confederacy message entirely."

"Just as the State could not force any particular citizen to post a pro-Confederacy sign in his or her front law," the court explained that, under United States Supreme Court precedent, the State cannot "commandeer the City's property for the State's preferred message."

"In short," the court concluded, "the State is impermissibly forcing the City to speak in favor of the Confederacy and its values, and as such, is denying the City its right to government speech."

In addition to denying the city's right to free speech, the circuit court held that the Act also violates the Fourteenth Amendment because it deprives the city of property without due process of law.

Birmingham owns Linn Park and the Monument itself, the parties agreed. But under the Act, the State decides what the City can and cannot do with its own property, even forcing it to spend money to preserve the Monument, and there is no process at all for the City or its citizens to be heard concerning the use of Linn Park and the Monument. 

The court concluded that the lack of "an opportunity to be heard at all, much less at a meaningful time and in a meaningful manner, violates the Fourteenth Amendment."

The court struck down the Act because it "deprive[s] the City of its Constitutionally protected rights."

The Attorney General's office told AL.com that it plans to appeal the ruling. Birmingham Mayor Randall Woodfin said the city is excited about the ruling and is reviewing options for what to do with the monument.

Monuments and memorials throughout the country honor Confederate leaders and soldiers who fought to secede from the Union. Though the Confederacy was defeated in 1865, many prominent memorials were dedicated generations later, sometimes with express opposition to racial equality.

EJI has documented nearly 2000 Confederate monuments across the United States. Scores of Confederate monuments installed at the turn of the 20th century attempted to recast Confederate secession as a defense of liberty rather than an effort to preserve slavery and white supremacy. By 1950, the South had more than 1000 Confederate monuments, including at least one at every state capitol and 300 on courthouse grounds.

Alabama is one of many Southern states (including Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia) that have passed "heritage" laws in recent years to protect Confederate monuments in light of increasing public pressure to remove them. Nearly all of these monuments stand in communities with no public memorial to the history of slavery and lynching or any public acknowledgment of what Confederate ideals meant for millions of disenfranchised black people.