Legally, Confederate statues in public spaces aren't a form of free speech

On June 4, Gov. Ralph Northam ordered the removal of a statue of Gen. Robert E. Lee from Monument Avenue in Richmond. A few days later, he vowed to fight a temporary injunction to its removal.

The Lee statue controversy comes amid high-profile Confederate icon removals nationwide. Although often a flash point of racial controversy, these monuments have become epicenters of widespread protests demanding systemic reform following the recent killings of black Americans such as Ahmaud Arbery, Breonna Taylor and George Floyd.

Virginia state senator and gubernatorial candidate Amanda Chase responded to Northam's announcement with a broadcast on Facebook Live in which she claimed that the monuments were a form of artistic expression and that their removal would raise "First Amendment concerns."

In a recent article, we look at who is making these types of constitutional claims, and why. Our survey found that relatively few people are likely to claim that Confederate statues are a form of free speech.

Is there a "free speech" component to the removal of statues?

In recent years, when state or local governments have removed statues and other reminders of the Confederacy, they've consistently generated pro-Confederate protests. Those hoping to keep the symbols in place often argue that they care about preserving history — but another common argument declares a constitutional breach: that removing Confederate memorials from public spaces is a violation of free speech.

It is difficult to argue that removing Confederate monuments from public spaces infringes on the right to free speech found in the Constitution. Here's why.

The First Amendment protects private speech from the government. But Confederate monuments on public property are a form of government speech — the government is deciding what to say. This is true whether the city commissioned the monument or a private individual donated it.

Importantly, if the government is "speaking," it's free to endorse any viewpoint it wishes. For example, if the government wants to run an antismoking campaign, it need not also run a pro-smoking campaign.

Under this "government speech doctrine," the Virginia governor deciding to remove a monument to a Confederate general is similar to a private citizen removing a political candidate's yard sign that she had initially placed in her yard herself. She does not have to put up a sign for the candidate's opponent, and her decision to remove the sign does not infringe on anybody's free speech rights.

In the 2008 case Pleasant Grove City v. Summum, for example, the Supreme Court unanimously decided that a religious organization's First Amendment rights were not violated when a city refused to allow its religious monument to be placed in a public park. Because the government had the final say on what monuments were allowed, the Supreme Court said these monuments were a form of government speech as they were an expression of the government's favored viewpoints.

If the claim that removing statues violates free speech does not hold much water from a legal standpoint, why do we consistently see this legally baseless claim in the public debate on Confederate monuments? Who makes these arguments?

Understanding this is important because of the heavy emphasis on rights in the United States. "Rights framing" — talking about political or social issues in expressly rights-based terms — can help mobilize supporters of keeping statues where they are, including those who might otherwise remain on the sideline.

So who makes this claim?

To understand the individual-level factors behind the free speech claim, we conducted an online survey with a representative sample of 332 voting-age Americans — and asked them whether they think removing a Confederate statue from a public space constitutes a violation of free speech. We didn't specify whose speech might be violated.

Just over 14% of those surveyed said that removing Confederate statues is a free speech violation. In our survey sample, this wasn't a widely held idea. Those who did believe this weren't necessarily people who self-identified as Southerners. In fact, Southerners in our survey were only slightly more likely to consider removing a statue a violation of free speech than non-Southerners.

Here's what seemed to drive the viewpoint about removing Southern icons violating free speech: unfavorable views of African Americans relative to whites; and, to a lesser extent, self-reported "Southern pride."

In other words, survey respondents who have unfavorable views of black Americans compared with whites are much more likely to say that removing Confederate statues violates free speech, compared with people who view blacks and whites on equal terms. At the same time, people in our survey who reported very high levels of Southern pride are also somewhat more likely to say that removing a statue violates free speech. But other research has shown how attitudes on "Southern pride" correlate with racial resentment, so it's important not to assume that "Southern pride" is racially innocuous.

In sum, our survey found that only a minority of Americans see removing Confederate icons from public spaces as a violation of the principle of free speech. This finding suggests that using the claim of free speech rights might be an effort by a relatively small subset of Americans to delay the removal of Confederate monuments and boost the chances that others will accept their claims and join the fight to see the icons left in place.

Carrington is a PhD candidate in political science at Syracuse University and a research associate at the Campbell Public Affairs Institute.

Strother is an assistant professor of political science at Purdue University. This piece was written for The Washington Post.