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Alabama Judge Overturns Law That Protected Confederate Monuments

The city of Birmingham was sued when it erected plywood around a Confederate memorial in a downtown park

A man walks past the covered Confederate monument in Linn Park on August 18, 2017. (Hal Yeager/Getty Images)
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In 2017, amid a nationwide push to take down controversial Confederate statues, the city of Birmingham, Alabama decided to erect plywood around the base of a towering monument to Confederate soldiers and sailors. The state’s attorney general swiftly sued the city, citing a 2017 law prohibiting the removal or alteration of historic monuments. But this week, as Brian Lyman of the Montgomery Advertiser reports, an Alabama judge overturned the law, ruling it unconstitutional.

First filed in 2015, the Alabama Memorial Preservation Act bans the “relocation, removal, alteration, renaming or other disturbance” of memorials and monuments that have been in place for 40 years or more. Supporters of the bill maintained it was intended to preserve the state’s history—both positive and negative chapters—but critics argued that the bill’s true purpose was to protect monuments to the Confederacy.

The Birmingham monument, a 52-foot-tall obelisk, was erected in a downtown park in 1905, according to Jay Reeves of the Associated Press. In court, the city argued that the wooden walls that had been set up around the monument did not technically constitute an alteration, and therefore did not violate the Memorial Preservation Act. The attorney general’s office disagreed, and said the state should be fined $25,000 a day for flouting the law.

But the state’s argument failed to sway Jefferson County Circuit Judge Michael Graffeo, who voided the law on the grounds that it violated Birmingham residents’ right to free speech and denied them due process.

“The state has placed a thumb on the scale for a pro-confederacy message," Graffeo wrote in a 10-page ruling.

“A city has a right to speak for itself, to say what it wishes, and to select the views that it wants to express,” Graffeo said. He also noted that Birmingham “has had for many years an overwhelmingly African American population,” and said it it is “undisputed that an overwhelming majority of the body politic of the city is repulsed by the monument.”

Graffeo also struck down the state law because, he wrote, it did not provide Birmingham with any recourse to decide what it can and cannot do with its own property. “There is no provision in the act for the city or its citizens to be heard concerning the use … of the monument,” he explained.

A similar law in North Carolina has also bound the hands of those who want to remove controversial Civil War memorials. After “Silent Sam,” a Confederate monument at the University of North Carolina at Chapel Hill, was toppled by protesters last August, the school’s chancellor and several trustees said they wanted to remove the statue and its base from campus. But a 2015 state law that prohibits the removal of historic monuments, unless relocation is necessary for preservation purposes or due to construction projects, stopped them from doing so.

This week, UNC-Chapel Hill Chancellor Carol Folt nevertheless ordered the statue’s base to be taken off campus, citing unspecified threats that put the community “at serious risk,” according to the Associated Press. The UNC Board of Governors subsequently pushed up Folt’s departure from the school, previously scheduled to happen in May, to the end of this month. The board’s chairman Harry Smith said a change in leadership was necessary to “move to a healing process."

In Alabama, the office of Attorney General Steve Marshall has said it believes the Alabama Memorial Preservation Act is constitutional and will appeal Graffeo’s ruling, according to NPR’s Ian Stewart. Given the state’s plan to appeal, the city cannot immediately take down the monument, Birmingham Mayor Randall Woodfin told the AP. But he added that he was happy with the ruling.

“We were not even a city during the Civil War,” he said.

About Brigit Katz

Brigit Katz is a freelance writer based in Toronto. Her work has appeared in a number of publications, including NYmag.com, Flavorwire and Tina Brown Media's Women in the World.

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