Notes on the Confederate Memorial Lawsuit: What the statute says

Miss. Code. Ann. § 55-15-81 is the statute the Sons of Confederate Veterans relies upon. Relating to “Any Revolutionary War, War of 1812, Mexican-American War, War Between the States, Spanish-American War, World War I, World War II, Korean War, Vietnam War, Persian Gulf War, War in Iraq or Native American War’s”, the statute provides:

(1) None of the following items, structures or areas may be relocated, removed, disturbed, altered, renamed or rededicated: …statues, monuments, memorials or nameplates (plaques), which have been erected on public property of the state or any of its political subdivisions, … such as local, municipal or county owned public areas, and any statues, monuments, memorials, nameplates (plaques), schools, streets, bridges, buildings, parks preserves, reserves or other public items, structure… which have been dedicated in memory of, or named for, any historical military figure, historical military event, military organization or military unit.

So. A series of “items” “on public property” may not be “removed… renamed.”  Those items include “nameplates (plaques)” and “streets…”

That clearly suggest that nameplates and streets cannot be removed or renamed when on public property.  And nameplates or plaques can’t be “altered.”

I cannot imagine that a court would hold that the addition of explanatory plaques would be barred by this statute, but I assume that is what the SCV will argue.

What can’t be removed, renamed, or altered? Those “which have been dedicated to the memory of or named for, any historical military figure, historical military event, military organization or military unit.”  Hmmm.  The Confederate statute is certainly “dedicated to the memory of… any military organization or military unit”– it’s all about the University Grays, isn’t it?  But what about Confederate Drive?  Not named after a figure or event, certainly, and not really a military organization or unit.  Really just indicated it was (and is no longer) the road to the cemetery.  Is naming the road “Confederate” by itself naming it for a military organization or unit?

The statute then preserves the right of the pubic body to maintain, preserve, or restore the items, and to move them to a “more suitable location.”

(2) No person may prevent the public body responsible for maintaining any of the items, structures or areas described above from taking proper measures and exercising proper means for the protection, preservation, care, repair or restoration of those items, structures or areas. The governing body may move the memorial to a more suitable location if it is determined that the location is more appropriate to displaying the monument.

The first thing that jumps out at me is the first four words:  “No person may prevent….”  This clearly bars anyone from interfering with some actions a public body may take.  Does it imply a right of action relating to other actions apparently covered by the first section? (I don’t think so but am open to arguments to the contrary).  But the balance of the statute does make clear that a public body can make a finding and move the “memorial” to “a more suitable location” if it is “more appropriate…”  That would certainly allow the University to move the Confederate statute if it made an appropriate finding.  But I don’t think they have any intention of doing that.

Where does that leave the claims?  The statute seems to clearly prohibit the renaming of a street that is a memorial to a military unit, but may not cover something as generic as “Confederate” because that is not a “military organization or unit.”  The statute would not allow altering the monument itself (but does not seem to prohibit adding explanatory plaques).  Section (2) may suggest by implication a private right of action to section (1), by prohibiting anyone contesting some actions that might seem barred under section (1) but not otherwise, but I think not.  The suggestion is far from explicit.

For those who want to read the statute straight through, the full text is blow the fold.

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Notes on the Confederate Memorial lawsuit: Sauce for the goose, sauce for the gander

I’ve pulled another standing case, which speaks in important ways to both the standing issue and, as to one claim, the merits issue.  It’s a pretty funny case for the SCV to have to explain away.

The overriding question is whether the SCV has any particularized injury on which to base their claim.  When they say they don’t want the sign changed, can they show they were injured by the change?  The secondary point is a First Amendment one:  To enjoin the University from placing up plaques, which is part of the relief sought, would clearly be a prior restraint against speech.  Reading a particular case has me wondering whether an injunction preventing the University from changing a sign is also a prior restraint against speech.  It sounds like “yes” to me.

In the case, the NAACP sued the Sons of Confederate Veterans, the Governor, and various state actors, asking to enjoin the purchase or use of the state flag because of its use of the stars and bars within it.  The Mississippi Supreme Court held:

Although the NAACP contends that the flying of the State Flag violates their constitutional rights to free speech and expression, due process, and equal protection as guaranteed by the Mississippi Constitution, these arguments fail to satisfy the threshold inquiry of constitutional injury. In Daniels, this Court determined that the flying of a Confederate Battle Flag by a county board of supervisors does not violate any constitutionally protected rights, essentially finding that there was no injury.