Katherine Mann '19
Against the backdrop of the recent violence in Charlottesville and statues shrouded in black, a distinguished panel of law professors held a discussion on Monday night entitled “Do Cities Have Free Speech Rights? Confederate Monuments, Sanctuary Cities, and State-Local Conflicts.” At issue was whether cities have or should have free speech rights that override state laws restricting their expression.
Professors Richard Schragger and Molly Brady, both of whom study local governments, cities, and property, participated, as well as Professor Yishai Blank, a visiting professor at Harvard Law School and professor at Tel-Aviv University who studies land use and local government. The three professors discussed the relationship between states and cities, with a focus on Virginia and Charlottesville. One of the main issues discussed was whether a city such as Charlottesville might have a free-speech argument against the state’s ban on removal of Confederate statues. In other words, as Schragger put it, is the city being “forced to speak” by the state’s ban?
Brady gave a brief history of Virginia’s ban on monument removal, which went into statewide effect in 1904. The state’s ordinance, § 15.2-1812, prohibits localities from disturbing or interfering with war monuments, although it’s gone through several iterations since its original focus on Confederate monuments. In its current form, it covers all additional wars since the Civil War. She said the issue now is “what happens when the city no longer wants to be associated with the message of the monuments, but the state is forcing them?” While cities have largely been beholden to state regulations, they have gained some rights against the state, such as in the realm of takings doctrine.
Blank suggested it might be possible to conceive of a regime where cities were granted free speech rights and compared cities to corporations, which under decisions such as Citizens United, have been treated more like individuals when it comes to free speech. He noted that there are pros and cons to this approach, and that for “city speech,” the line between expression and action is a very difficult one. He said city speech could encompass maintaining statues, raising flags, Black Lives Matter signs on town halls, or be as broad as covering lobbying activities, which are currently covered for corporations. “But if all this is protected under the First Amendment,” he said, “there could be huge ramifications.”
One potentially positive ramification might be that cities could counter corporate influence in politics. Blank also noted that the state’s politics is more recently reflecting partisanship on the national level, and giving cities First Amendment rights might prevent federal and state encroachment on local politics. But he was careful to emphasize that cities wouldn’t be totally unregulated in their speech, since they would still have to show a compelling interest. And some cities might use opt-out mechanisms for citizens so that their money would not be used for speech with which they disagree.
Schragger explained that our concept of cities is not that of an individual entity with rights, but rather as an entity of the state that exercises power. At the same time, they’re also subordinate to the state, creating tension. He discussed SB 4 introduced in Texas, which would not only ban cities from becoming sanctuary cities, but would keep cities from endorsing such policies. He also noted that there was nothing Charlottesville could have done to prevent Unite the Right or Ku Klux Klan members from openly carrying weapons during their rallies, because state law preempts them from doing so. And of course, if the city wants to remove confederate monuments, the state forbids it. In effect, he said, the city “can only speak in the form of monuments at the state’s sufferance.”
“We might say as a policy matter, it doesn’t make sense for the state to decide what monuments to put up in any locality,” he continued. “Why would they care?” States might decide to regulate cities when desiring uniformity or when there is oppression of minorities, but those arguments aren’t especially compelling in the case of monuments. Schragger posed the question of whether a first amendment doctrine could remedy the vulnerability of cities, as well as whether we want it to.
Brady noted that in the context of takings law, special doctrines were created to address the rights of municipalities. She suggested that a similar doctrine for the speech of cities might be a baby step toward addressing some of these issues. Blank brought up the ways cities are treated like corporations, such as in the bankruptcy context. He noted that in the federalism context, we have safeguards for states, such as representation in Congress, but an equivalent representation of cities’ at the state level might be seen as unconstitutional due to the one-person, one-vote doctrine.
One audience member brought up the possibility of using referenda for citizens of a city to decide to remove a statue, and asked if such a mechanism might be permitted. The panelists agreed that this strategy would get closer to representing the speech of the citizens, but that generally, in Dillon’s Rule in states like Virginia, the state would win in the end. Blank mentioned a referendum from the 1980s in Washington, D.C. on medical marijuana, the votes of which Congress kept from being counted. That move provoked widespread disapproval and Blank agreed that a referendum gets closer to the nexus of the city and the citizens of the city.
On the question of current politics in Virginia, Schragger said that both Governor McAuliffe and Attorney General Mark Herring have come down on the side of localities in deciding whether to take down monuments, although exit polls from the recent Virginia elections showed people favoring keeping monuments by a margin of about sixty to thirty. “What puzzles me as a conceptual matter is why the state would care, and yet the state cares deeply—the citizens—the culture, they care deeply even if they’ve never seen the monuments.”
While the debate over speech rights of cities has yet to be resolved, it’s certain that contentious issues like Confederate monuments and sanctuary cities will keep it alive.