Federal Appeals Court: Plaintiffs Lack Standing to Challenge Removal of Confederate Monuments


Fatal to the plaintiffs’ First Amendment claims, according to the Judge, was that the plaintiffs failed to show that the Confederate monuments were their speech.

The Sons of Confederate Veterans and concerned individuals lacked standing to pursue their First Amendment claims over the removal of Confederate monuments from the University of Texas’s Austin campus and a San Antonio park, a federal appeals court has ruled.

The decision shows the perennial importance of the threshold issue of standing in constitutional law. A plaintiff pursuing a constitutional claim — such as a free-speech claim — must be able to show that he or she has suffered a concrete and particularized injury distinct from the general public.

In the University of Texas case, Major George Littlefield, a Civil War veteran, donated funds to the University of Texas to build a massive bronze arch, a statue of President Woodrow Wilson and statues of several Confederate leaders, including Jefferson Davis, Robert E. Lee, Albert Sidney Johnston and John H. Reagan.

The university placed the statues on campus but never built the bronze arch. Nearly a century later, the university president had the statues relocated. David McMahon, Steven Littlefield and the Texas Division of the Sons of Confederate Veterans sued to force the university to reverse its decision relocating the statues.

Years earlier in San Antonio, the city council gave the United Daughters of the Confederacy permission to erect a Confederate monument in a city park in 1899. About a decade later, two cannons were placed near the monument. About a century later, the city council passed an ordinance to remove the monument and cannons from the park. Richard Brewer and the Texas Division of the Sons of the Confederate Veterans sued the city in federal court in San Antonio.

The plaintiffs alleged that the removal of these Confederate monuments violated the First Amendment, because their removal amounted to the suppression of a particular political viewpoint.

However, in two separate opinions, federal district courts dismissed these lawsuits because of standing. In both cases, the plaintiffs appealed to the U.S. Court of Appeals for the Fifth Circuit, which consolidated the cases.

The Fifth Circuit panel affirmed the lower courts’ decisions in its Jan. 3, 2020 decision in McMahon v. Fenves. Writing for a unanimous three-judge panel, Judge Edith Jones determined that the plaintiffs lacked standing.

Fatal to the plaintiffs’ First Amendment claims, according to Jones, was that the plaintiffs failed to show that the Confederate monuments were their speech. She explained that “plaintiffs fail to explain how these ties [to the monuments] give plaintiffs a First Amendment-based stake in the outcome of the litigation.”

In other words, according to Judge Jones, the “plaintiffs have failed to plausibly show that these monuments are their speech.”  She reasoned that the injury suffered by the plaintiffs was more of a “generalized psychological injury, not a particularized free-speech one.”

She concluded, the “plaintiffs have shown only a rooting interest in the outcome of this litigation, not a direct and personal stake in it.”

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).

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