The First Amendment and Civil Rights in Selma: Is a Monument to Early KKK Leader Constitutional?


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?

About Nisha Ajmani

Nisha Ajmani is a recent law school graduate from the University of Oregon, and she graduated from Bowdoin College with a B.A. in Religion with a Psychology minor. She’s particularly interested in Constitutional Law, Criminal Law, and Consumer Protection issues, and in her spare time, she loves to bake (as she’s a self-professed sugar junkie), swim, and hang with her tuxedo cat, Izzy.
Posted in: Civil Rights, Constitutional, Law, Supreme Court
  • John Shelley

    The winners of the war have re-written history,, unfairly maligning General Forrest as they have hidden from light the depressed and bungling Lincoln as well as the Negro Soldiers of the Confederacy. Several people in the Selma area are in sync with nationally recognized ne’er do wells such as Jesse Jackson and Al Sharpton who make a living off the ignorant by telling them which historic scabs to peel up to continue disagreement. I dont know which will happen first, this “democracy with its paper money wil fail ,, or those aging old rabble rousers will die off. Either way,, their constant raking of racial differences will soon be ending,,, and good riddance.
    Very soon now, the Yankee banking system will totally fail,, and when the dollar wont buy near enough to eat,, General Forrest will be proven to have been on the right side.

  • James Bendy

    The initial premise of “Forrest was an early KKK leader” is completely false. Forrest died in 1887, the kkk was formed in 1915. There was a veterans’ club started in December 1865 by six ex-soldiers, they called themselves a “kuklos clan” which alluded to their Scoth-Irish roots, but they were nothing like the racist 1900s KKK everyone despises; they were more af a USO. There was an investigation by a U.S. Congressional Committee in 1871 that tried to find some connection between Forrest and the erroneously-named Ku Klux Klan, and they found him innocent of all charges. Supposedly, a convention of the Ku Klux at the Maxwell Hotel had “elected” forrest as their leader, but Forrest was not within 100 miles of the hotel at the time, he was building a railroad. On his railroad, Forrest hired many blacks to do jobs that other railroads refused to let blacks do.
    Forrest was actually an early civil rights pioneer, read about it at
    This urban legend about Forrest being ‘a KKK leader’ is just an old hoax and should be forgotten since it is false. We should not slander the good name of a dead man.

  • Jamie Funkhouser

    A little more research needs to be done before writing such an article. Nathan Bedford Forrest did not serve as the first Grand Wizard of the Ku Klux Klan. Many go as far as to say he was a founder. To say so is a form of slander against his good name. There is no proof that he ever was involved in the forming or leading of the Klan. Forrest stated while under oath of congress… ‘any information he had on the Klan was information given to him by others.’ When asked before congress… ‘Did you take any steps in organizing an association or society under that prescript (Klan constitution)?’ Forrest replied : ‘I did not’ Forrest further stated that ‘..he thought the Organization (KKK) started in middle Tennessee, although he did not know where. It is said I started it.’ Forrest would later say ‘It was a matter I knew very little about. All my efforts were addressed to stop it, disband it, and prevent it….I was trying to keep it down as much as possible.’ In the same hearing in congress (June 27th, 1871) Forrest was found innocent of the accusations against him at the Battle of Fort Pillow. The stories of a massacre were found to be unreliable as many Confederate and Union veterans told a different story. Most all of them say that the Federals did not surrender that they fled to the gun boat and continued to fire on the Confederates. The fort was never surrendered by the Federals.

    Maj. J.P. STRANGE,Assistant Adjutant-General (CSA) Reported :

    “The enemy made no attempt to surrender, no white flag was elevated, nor was the U.S. flag lowered until pulled down by our men. Many of them were killed while fighting, and many more in the attempt to escape. The strength of the enemy’s force cannot be correctly ascertained, though it was probably about 650 or 700. Of these, 69 wounded were delivered to the enemy’s gun-boats next day, after having been paroled. One hundred and sixty-four white men and 40 Negroes were taken prisoners, making an aggregate of 273 prisoners. It is probable as many as half a dozen may have escaped. The remainder of the garrison were killed.”

    Maj. Gen. Stephen A. Hurlbut, U.S. Army, commanding Sixteenth Army Corps Reported:

    Fort Pillow, garrisoned by four companies Alabama Siege Artillery, under Major Booth, and about 250 recruits for Thirteenth Tennessee Cavalry, under Major Bradford was attacked by a heavy body of the enemy, commanded by Major-General Forrest in person, on the morning of the 12th instant.

    A surrender was demanded and refused and the fort was held until about 3 p.m., at which time the enemy in overwhelming numbers carried the fortifications by assault. Resistance was gallantly made until the last moment, notwithstanding the loss of Major Booth, the brave commander, at an early period of the engagement.

    Forrest’s men were also alleged to have set fire to Union barracks with wounded Union soldiers inside, however the report of Union Lieutenant Daniel Van Horn said that act was due to orders carried out by Union Lieutenant John D. Hill. Van Horn also reported that, “There never was a surrender of the fort, both officers and men declaring they never would surrender or ask for quarter. Fort pillow was a propaganda story that the Federals used to help with recruiting. The US congress saw this to be the issue. Forrest was allowed to go home.

    As for Forrest being accused of being a racist. Unlike most slave traders at the time, who were considered ruthless and uncaring of the slaves they sold, Forrest was well known for being kind to the slaves in his charge, ensuring they were well fed and clothed, and attempting the best he could to not separate families. When the war started, Forrest asked 45 of his slaves (which he considered as servants) to join him, offering them their freedom after the war, no matter how it turned out. They all joined him and although they had numerous opportunities to desert him, 44 stayed by his side until the end of the war. In fact, part of his special command escort later called “the green berets” (ironic ain’t it), consisted of the most elite and best soldiers available, and among them were eight black men. Immediately after the war, Forrest returned home with the ‘free’ black men who fought with him. Sixty-five black troopers were with the General when he surrendered his command in May 1865. Forrest said of these black soldiers, “No finer Confederates ever fought.”

    After the war Forrest would become an advocate of civil rights. One of his best examples is found in his speech to the Independent Order of Pole-Bearers Association in 1875, where he is quoted.

    “Ladies and Gentlemen I accept the flowers as a memento of reconciliation between the white and colored races of the southern states. I accept it more particularly as it comes from a colored lady, for if there is any one on God’s earth who loves the ladies I believe it is myself. I came here with the jeers of some white people, who think that I am doing wrong. I believe I can exert some influence, and do much to assist the people in strengthening fraternal relations, and shall do all in my power to elevate every man to depress none.I want to elevate you to take positions in law offices, in stores, on farms, and wherever you are capable of going. I have not said anything about politics today. I don’t propose to say anything about politics. You have a right to elect whom you please; vote for the man you think best, and I think, when that is done, you and I are freemen. Do as you consider right and honest in electing men for office. I did not come here to make you a long speech, although invited to do so by you. I am not much of a speaker, and my business prevented me from preparing myself. I came to meet you as friends, and welcome you to the white people. I want you to come nearer to us. When I can serve you I will do so. We have but one flag, one country; let us stand together. We may differ in color, but not in sentiment Many things have been said about me which are wrong, and which white and black persons here, who stood by me through the war, can contradict. Go to work, be industrious, live honestly and act truly, and when you are oppressed I’ll come to your relief. I thank you, ladies and gentlemen, for this opportunity you have afforded me to be with you, and to assure you that I am with you in heart and in hand”.

    When General Nathan Bedford Forrest died in 1877 it is noteworthy that his funeral in Memphis was attended not only by thousands of whites but by hundreds of blacks as well. The funeral procession was over two miles long and was attended by over 10,000 area residents, including 3,000 black citizens paying their respects.

    • http://Article3 Nisha

      See my comment above — it address many of the points you made in your comment.

  • Valerie Protopapas

    Suggesting that a monument to a man for his war services somehow constitutes the “establishment” of some sort of religion is carrying this matter far away from commonsense or reality. To begin with, using a symbol – such as a cross – does not make one a Christian anymore than using a baseball bat in a mugging makes one Babe Ruth.

    Forrest is being honored for his service to those Southern states who attempted, constitutionally, to secede from the Union just as the New England states had attempted during the War of 1812. If it was not treason DURING A WAR, it certainly wasn’t treason in 1861. During the so-called “civil war” (it was no such thing), Forrest fought with great skill and courage in defense of his home and state and is as deserving of a monument as any other hero of the Confederacy OR the Union.

    As well, Forrest’s “involvement” with the Ku Klux Klan is little understood. Though the FIRST manifestation of the Klan was begun by six men who served under him, in some instances there are those who deny that he was EVER involved though he was asked to become a leader. But even if he WAS involved, the Klan in which Forrest participated he demanded disbanded when it began to turn against Southern blacks. Forrest was very much in favor of the good of liberated blacks and even addressed a meeting of such and was warmly greeted with applause and flowers. When he was questioned by a Congressional committee regarding his service in the war and his actions afterward, Forrest was cleared of ALL charges including the alleged “massacre” at Fort Pillow and any involvement in the later manifestation of the Klan. This was even though General Sherman certainly wanted the man hanged.

    There is SO much ignorance regarding this whole issue and it is altogether wrong to allow ignorance to set standards regarding the freedom of speech and expression and the public expression of the history and heritage of the South. General Forrest deserves his memorial and those attempting to deprive him of it are either ignorant – as noted – or they have embraced the Marxist revisionist strategy of political correctness which seeks to stifle not only debate and dissent but the First Amendment itself.

    • http://Article3 Nisha

      A cross IS considered to be a symbol of Christianity for purposes of the Establishment Clause — the “degree” to which one considers one’s self to be Christian doesn’t make a difference under this doctrine if a cross is used in some manner. In my article, I’m merely proposing that there’s a possible argument to be made that Forrest, with many historical records showing that he was involved in the Ku Klux Klan (sources with quotations included below), can be viewed as a symbol of the KKK’s religious ideology. For example, it’s not a big leap to interpret a statue/picture of the Pope to be a symbol of Catholicism. I’m not saying that the Pope and Forrest are necessarily analogous — rather, I’m simply using that example to illustrate the point I’m trying to make in my article.

      There are many reliable sources that indicate the opposite of what you have stated about Forrest’s history. For example, the Anti-defamation League ( and the Southern Poverty Law Center (; — both of which indicate that the Klan of the 1860s was violent and exhibited a racist ideology. Those sources also describe how Forrest was, in fact, involved, as a leader of this first version of the KKK: “At this meeting, former Confederate General Nathan Bedford Forrest was elected Grand Wizard, or supreme leader, of all the Klan.” –

      As these sources describe, the first Klan resisted Reconstruction (late 1860s): “The policies of Reconstruction — aiming to extend the rights of Southern blacks — had the unintended effect of pushing hundreds of resentful and anxious veterans into the Klan, which soon began instituting a systematic policy of violence in opposition to the new social order. Former slaves were the obvious target of this terrorism, but the Klan also harassed, intimidated and even killed Northern teachers, judges, politicians and ‘carpetbaggers’ of all ilk.” –

      Further, the Southern Poverty Law Center describes Forrest’s involvement in Fort Pillow and the brutal actions he took against his slaves:

      “The severest of the criticism of Forrest — subjects studiously avoided by today’s neo-Confederate activists — centers on three indisputable facts:

      Forrest was a Memphis slave trader who acquired fabulous wealth before the war;
      He commanded the troops who carried out an 1864 massacre of mostly black prisoners; and
      He led violent resistance to Reconstruction as the first grand wizard of the Ku Klux Klan.

      As Hurst points out, friendly Forrest biographers have attempted to describe him as a kindly slave trader, a man who cared for his charges and always avoided separating families.

      But a Civil War newspaper account described whippings in which four slaves held the victim stretched out in the air while Forrest personally administered the bullwhip. Women were allegedly stripped naked and whipped with a leather thong dipped in salt water.

      Such accounts were later backed up by former slaves who described terrifying brutality and the break-up of their families.

      Forrest despised blacks who fought for the Union, and was accused by one Union general of personally shooting a captured free mulatto who was a servant of a Federal officer. A Confederate cavalryman once recounted how Forrest “cussed [him] out” for failing to execute a captured black Union soldier.

      But it was the slaughter of Union forces at Fort Pillow, Tenn., that was the most damning episode of all….’The slaughter was awful,’ a Confederate sergeant later wrote his family. ‘I with several others tried to stop the butchery and at one time partially succeeded, but Gen. Forrest ordered them shot down like dogs, and the carnage continued.’

      There were numerous similar accounts from Union soldiers, several of whom said they heard Confederate officers saying Forrest had ordered them to “kill the last God damn one of them.”

      Eventually, Forrest sympathizers produced a Union officer who said there had been no slaughter of men trying to surrender — an officer who later said that he gave a false statement under duress while in rebel captivity.”

      See also:;;; (194).

  • James Bendy

    The SPLC is not a reliable source. They are even less reliable than wikipedia. SPLC started out with good intentions but they fell in love with the dollars they bring in with pleas for money to fight their latest causes. Sorry, Nisha, your sources are not accurate and you are ignoring the actual historical facts. Saying “two plus two equals three’ over and over does not make it true.
    The supposed “witnesses” at Fort Pillow who claimed they saw and heard Forrest and his men do horrible things were later proved to have been elsewhere, and not anywhere near Fort Pillow at the time of the battle. The revisionists and Northern apologists like to use the ‘false witnesses’ as their “proof’.
    You can read about the true account of that and other battles in “Confederate Victories At Fort Pillow” by Edward F. Williams III, published 1973 by Historic Trails, Inc., Memphis, TN and “The Campaigns of General Nathan Bedford Forrest and of Forrest’s Cavalry”, originally published in 1868 and reprinted in 1996. No revision in these books, just facts.

  • Jamie Funkhouser

    SPLC is a biased Joke you want real sources you go to the “Official Records of the War of the Rebellion”


    Report of Lieut. Mack J. Leaming, Adjutant Thirteenth Tennessee Cavalry, The Battle of Fort Pillow.

    At 3.30 p.m. firing suddenly ceased in consequence of the appearance of a white flag displayed by the enemy. The party bearing the flag was halted about 150 yards from the fort, when we were informed by one of the party that they had a communication from General Forrest to the commanding officer of the U.S. forces at Fort Pillow. I was ordered out, accompanied by Captains Bradford and Young, to receive this communication, which I took back to the fort while the party bearing the same remained for an answer. As nearly as I can remember the communication was as follows:

    Near Fort Pillow, Tenn., April 12, 1864.

    Maj. L. F. BOOTH,
    Commanding U. S. Forces at Fort Pillow:

    MAJOR: Your gallant defense of Fort Pillow has entitled you to the treatment of brave men. I now demand the unconditional surrender of your forces, at the same time assuring you that you will be treated as prisoners of war. I have received a new supply of ammunition and can take your works by assault, and if compelled to do so you must take the consequences.

    Very respectfully, your obedient servant,
    N. B. FORREST,
    Major-General, Commanding Confederate Cavalry.

    To this communication I was ordered to make the following reply, which I placed in a sealed envelope, addressed to Major-General Forrest, and delivered to the party in waiting:

    Fort Pillow, Tenn., April 12, 1864.

    Maj. Gen. N. B. FORREST,
    Commanding Confederate Cavalry:

    General: Yours of this instant is received, and in reply I have to ask one hour for consultation and consideration with my officers and the officers of the gun-boat.

    Very respectfully, your obedient servant,
    L. F. BOOTH,
    Major, Commanding U.S. Forces.

    Desiring to conceal from the enemy the fact of the death of Major Booth and cause him to believe that he was still in command, it was deemed not only proper but advisable that I append his name to the communication.

    I again repaired to the fort, where I had been but a few minutes when the party bearing the white flag again made its appearance with a second communication. and I was again sent out to meet the same. This time, just as an officer was in the act of handing me the communication, another officer galloped up and said, “That gives you twenty minutes to surrender; I am General Forrest.” This I took back to the fort, the party remaining as before for an answer. It read as follows:

    Near Fort Pillow, April 12, 1864.

    Maj. L. F. BOOTH,
    Commanding U. S. Forces at Fort Pillow:

    MAJOR: I do not demand the surrender of the gun-boat; twenty minutes will be given you to take your men outside the fort and surrender. If in that time this demand is not complied with I will immediately proceed to assault your works, and you must take the consequences.

    Very respectfully, your obedient servant,
    N. B. FORREST,
    Major-General, C. S. Army.

    After a short consultation with the officers of the garrison, it was unanimously voted not to surrender. In accordance with this decision I was ordered to write and deliver to the party in waiting the following communication:

    Fort Pillow, Tenn., April 12, 1864.

    Maj. Gen. N. B. FORREST,
    Commanding Confederate Cavalry:

    GENERAL: I will not surrender.

    Very respectfully, your obedient servant,
    L. F. BOOTH,
    Commanding U. S. Forces, Fort Pillow.

    This I delivered to General Forrest in person, who broke open the envelope in my presence, and after a hasty perusal of its contents re-folded it, when we simply saluted and each went our way.