This is the battle of the first amendment against itself — free speech and the establishment clause
“Nathan Bedford Forrest.” There are drastically competing emotional reactions to that name. To many, the name symbolizes America’s painful history of racial violence and oppression — it’s the name of a man who was an early leader and first Grand Wizard of the Ku Klux Klan; a murderer; and a slave-trader. Others, however, view Forrest as a hero, a brilliant Civil War general, and a model for their children.
These conflicting perspectives are playing out passionately right now in what’s considered to be the birthplace of the Civil Rights movement — Selma, Alabama — where a local group, the Friends of Forrest, is seeking to reconstruct a statue of Forrest that sits on a city cemetery. Grassroots Democracy, another local organization, is leading the cause to prevent the rebuilding of this monument. Politics aside, is this legal?
In order to understand the myriad issues that this dispute implicates, it would be helpful to have a historical perspective of the monument itself. The statue has been the source of continuous controversy for over ten years when the Friends of Forrest had the monument placed in a Selma Civil War museum. Soon thereafter, residents began to object to the monument and it was vandalized several times. This dispute reached a turning point when the mayor and city council agreed to move the statue to the Confederate Circle in the city’s Old Live Oak Cemetery — the monument’s current location.
In March this year, the bust of the statue was stolen, which prompted the Friends of Forrest and the United Daughters of the Confederacy to attempt to rebuild and renovate the monument. Grassroots Democracy has challenged their efforts by obtaining over 84,000 signatures to halt any further construction. Protesters have also expressed their outrage by lying in front of cement trucks in the cemetery. The most recent related event took place on September 25, 2012, when the City Council voted 4-0 to prevent further construction of the statue (with two members abstaining from voting).
While some details of Forrest’s past remain in contention, the majority of historical accounts show that he was an extreme and violent racist — as evidenced by him overseeing the massacre of close to 300 African American Union soldiers who had surrendered during the Civil War battle of Fort Pillow in Tennessee. In addition, records show that he ordered brutal whippings of defiant slaves and violently resisted Reconstruction as the KKK’s first Grand Wizard.
With these facts in mind, and considering the pivotal role of Selma in advancing the Civil Rights movement and passing the Voting Rights Act, it seems jarring to many that reconstruction of the statue has proceeded as far as it has, which begs the basic yet complicated question I mentioned earlier: Is it legal?
Not surprisingly, the answer is…“It depends.” In large part, the crux of the controversy centers around whether the land in question is public or private. Supporters of the statue argue that in 1877, the City of Selma granted an acre of the cemetery to the United Daughters of the Confederacy. Protesters, however, contend that no legal documents exist identifying the United Daughters of the Confederacy, or any other entity or an individual for that matter, as the owner of the Confederate Circle. Currently, the parties are anxiously waiting for a local court to decide who owns the property in question.
While the issue of land-ownership is currently at the forefront of the dispute, it’s only the first layer of queries and legal implications that will arise. For example, if it’s public land, would the local government be implicitly (or explicitly!) endorsing racial and religious bigotry? Even if the Confederate Circle belongs to a private entity, would passersby be aware of this fact given that the Confederate Circle is contained within the city’s cemetery? In other words, even if it’s not public ground, does it appear to be? And, would that even matter?
While each question seems to beget yet another question, there are two principles that can provide some footing for both sides, and the doctrines are both embodied in the First Amendment: the Freedom of Speech Clause and the Establishment Clause.
The Freedom of Speech Clause
Supporters of the monument will, undoubtedly, argue that they’re protected under the First Amendment’s Freedom of Speech Clause. This argument will be stronger if the section of the cemetery in question is found to be private because, even if the statue is interpreted as a form of hate speech, private expressions of hate fall within the scope of First Amendment protections — so long as the expressions don’t promote some violent or obscene act or qualify as a “true threat.”
Protesters, however, have a decent argument against any further building of the statue under the Establishment Clause of the First Amendment.
What is the Establishment Clause and How Might it Affect this Dispute?
The Establishment Clause provides that the government “shall make no law respecting an establishment of religion . . . .” Case law regarding the Establishment Clause is continuously in flux, and when the U.S. Supreme Court takes up an Establishment Clause issue, there are often multiple opinions. First Amendment experts, however, have opined that the guiding approach used by the Court is the Neutrality Theory. The Neutrality Theory requires that the government refrain from favoring one religion over another and from favoring religiosity over secularism, and vice-versa.
With that in mind, if the Forrest statue is eventually allowed to be rebuilt, would the local government effectively be supporting the KKK’s religious ideology, with Forrest as a symbol of that ideology? If so, would the City Council then be favoring the KKK’s religious beliefs over other religious ideologies and secularism?
The statue of Forrest could likely be considered as a signifier of the religious beliefs of the KKK because the Supreme Court defines “religion” broadly as “a given belief that is sincere and meaningful [and] occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who” is qualified for certain government exemptions.
Because we are, unfortunately, all too familiar with images of burning crosses; white, pointed hats; and religious persecution and violence at the hands of the KKK, Forrest, as one of the KKK’s earliest leaders, would seem to be a figurehead for the type of Christian beliefs that the KKK espouses. Thus, there’s a strong argument that the statue of Forrest falls within the purview of the Establishment Clause.
In determining whether a government’s actions are neutral toward religion, courts have recently utilized the Symbolic Endorsement Test. Capitol Square Review and Advisory Board v. Pinette is a key case that attempts to set out a framework for analyzing what constitutes “symbolic endorsement.” With no majority opinion and, apparently, three different approaches to the test, the Court probably caused more confusion than clarity.
In Pinette, the Court had to decide whether it was constitutional for the government to prevent the KKK from building a tall cross in a public park across the street from the Ohio Statehouse. Even though there was no majority opinion in this case, seven of the Justices determined that allowing the cross didn’t violate the Establishment Clause and that disallowing the cross would have violated the KKK’s free speech rights.
The plurality of four Justices, lead by Justice Scalia, ruled that the test wasn’t necessary because the issue involved private speech on public property. Possibly, in her concurrence, Justice O’Connor, joined by Justices Souter and Breyer, established the proper standard to use for the Symbolic Endorsement Test. She said that the test should be applied from the perspective of a reasonable observer who “must be deemed aware of the history and context of the community and forum in which the religious display appears . . . .”
Additionally, Justice O’Connor expressed her view that, because the government erected disclaimer signs around the cross, it was clear to a reasonable observer that the government wasn’t endorsing Christianity.
Finally, Justice Stevens — whom Justice Ginsburg joined in dissenting — believed that, “‘If a reasonable person could perceive a government endorsement of religion from a private display, then the State may not allow its property to be used as a forum for that display.’”
Because federal courts around the country have followed both the Scalia and O’Connor approaches, and a pair of recent conflicting Supreme Court cases dealing with the Establishment Clause and displays of the Ten Commandments on public property, the status of the law is foggy at best. Therefore, parties who find themselves in a dispute that implicates religious symbols under the Establishment Clause might as well bring any persuasive argument that could realistically fit within one of the multiple Symbolic Endorsement Test paradigms.
Depending on how the local court decides the property issue, the First Amendment may well prove to be the backdrop for the next chapter of this ongoing controversy — with the proponents of the Forrest monument arguing that the Freedom of Speech Clause requires that the City Council allow them to rebuild the statue, and with the opponents employing the Establishment Clause to prevent the monument from being reconstructed.
There are passionate voices on both sides of the dispute. What’s your take? Should the statue be allowed to stand?
Related articles
- Honoring the KKK? (thedailybeast.com)
- A Different Kind of Hero (splcenter.org)
