Birmingham Mayor William Bell had the Confederate monument in Linn Park covered with a plywood screen after protests in Charlottesville, Virginia, turned violent. The screen led to a case in which the state claimed the city violated the Alabama Memorial Preservation Act. The city, in turn, claimed that the First Amendment protected its right to "speak" and that the screen was a form of government speech protected by the First Amendment. Though a circuit court agreed with the Birmingham government, the Alabama Supreme Court on Nov. 27, 2019 said that Birmingham did not have First Amendment rights or protection. (Photo by BirminghamWatch, an Alabama non-profit inititiave for independent journalism, used with permission.)
The City of Birmingham does not have an independent right to free speech under the government speech doctrine, the Supreme Court of Alabama ruled in a decision dealing with the treatment of a monument dedicated to Confederate soldiers.
The City of Birmingham and the State of Alabama have been embroiled in a dispute over the treatment of a monument dedicated to Confederate soldiers, a monument funded by the Pelham Chapter of the United Daughters of the Confederacy in 1905.
The monument features words, such as:
“In Honor of the Confederate Soldiers and Sailors.”
“The manner of their death was the crowning glory of their lives.”
“To the memory of the Confederate soldiers and sailors. Erected by the Pelham Chapter, United Daughters of the Confederacy, Birmingham, Ala., April 26, 1905.”
Birmingham mayor orders screen around base of Confederate monument, blocking view
On August 15, 2017, then-Birmingham mayor William Bell ordered city employees to erect a free-standing plywood screen in the area around and near the base of the monument. The plywood screen was nearly 17 X 17 feet at its base and stands 12 feet tall. It obscures the base of the monument and the bottom of the marble shaft from view.
The next day – August 16, 2017, the state of Alabama filed a declaratory judgment action against the city of Birmingham and the mayor, contending that they violated the Alabama Memorial Preservation Act. This act provides in pertinent part:
No … monument, which is located on public property and has been so situated for 40 years or more may be relocated, removed, altered, renamed, or otherwise disturbed.
The State argued that the placement of the 12-foot high plywood screen resulted in an altering or disturbing of the monument. The City countered in part with a free-speech defense.
Birmingham claims screen was government speech, protected under First Amendment
The City contended that its action in placing the plywood screen around the monument was a form of government speech protected by the First Amendment of the U.S. Constitution.
An Alabama circuit court accepted this First Amendment argument and ruled in favor of the city of Birmingham. The trial court reasoned that the city had a “legally protected right to speak.”
On appeal, the Alabama Supreme Court reversed in its November 27, 2019, decision in State v. City of Birmingham. The state high court first noted that the placement of the plywood screen obscuring much of the monument and all its inscriptions violated the Alabama Memorial Preservation Act. The state high court wrote that “the monument in its current form – covered by a 12-foot plywood screen around the base – memorializes nothing.”
Alabama Supreme Court sides with state, says Birmingham does not protections under First Amendment
The state high court also rejected the city’s reliance on the government speech doctrine. The state high court reasoned that municipalities or cities are subordinate entities of the state. Furthermore, the state high court determined that the trial court’s decision reflected “a misunderstanding of the government-speech doctrine.”
According to the Alabama high court, “a determination that a certain form of expression is government speech means that the Free Speech Clause has no application.”
The Alabama high court emphasized the U.S. Supreme Court ruling in Pleasant Grove v. Summum (2009), a decision in which the Court ruled that a city’s placement of monuments in a public park was a form of government speech insulated from a First Amendment challenge by a private group that wanted the city to erect its monument in the park.
The U.S. Supreme Court explained that “the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.”
To the Alabama high court, this ruling and other government speech decisions by the U.S. Supreme Court do not confer “on that government entity the rights and protections included in the Free Speech Clause of the First Amendment.”
Government speech doctrine is a defense to free-speech challenge, but does not provide right to speech, Court says
In other words, the Alabama Supreme Court reasoned that the government speech doctrine is a defense to a free-speech challenge but does not accord a governmental entity an affirmative First Amendment right.
The Alabama Supreme Court then returned to its line of reasoning that states maintain all sorts of control and power over its municipalities.
The city of Birmingham had argued that the U.S. Supreme Court has held in numerous cases that corporations have First Amendment rights. However, the Alabama Supreme Court responded that those decisions did not involve municipal corporations, which are different.
“To the extent the City defendants suggest that the City has an ‘inherent right’ to free speech, we disagree,” the Alabama high court ruled.
The Alabama Supreme Court’s decision and analysis of the government speech doctrine is quite interesting. Whether the city of Birmingham appeals the decision remains to be seen.
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).