A panel of judges appeared skeptical of the Confederate heritage advocates’ First Amendment claims.
ATLANTA (CN) — A legal battle over the removal of a Confederate monument from a central Florida town square raged on Thursday in the 11th Circuit.
An attorney for members of several Confederate heritage groups asked a three-judge panel of the Atlanta-based appeals court to reinstate their lawsuit challenging the relocation of a Confederate soldier statue from a downtown park in Lakeland. The hearing was held by phone because of the Covid-19 outbreak.
Members of the groups Southern War Cry, Veterans Monuments of America, Sons of Confederate Veterans and Save Southern Heritage Florida sued Lakeland city officials after they voted to remove the 110-year-old statue memorializing Confederate soldiers. The Florida secretary of state was also named in the lawsuit.
A federal judge in Tampa dismissed the case last year, finding that “the government’s freedom to speak for itself ‘includes ‘choosing not to speak’ and ‘speaking through the . . . removal’ of speech that the government disapproves.’”
The statue, erected by the United Daughters of the Confederacy in 1910, stood prominently in downtown Lakeland’s Munn Park until city officials began receiving complaints during the national debate over Confederate monuments in the last several years. The Lakeland City Commission voted to move the monument from the park to a nearby veterans’ cemetery using $225,000 from red-light camera citations.
On Thursday, attorney David McAllister told the judges panel in Atlanta that the removal of the monument violated his clients’ First Amendment rights.
“The plaintiffs are not offended observers,” he said. “They are trying to maintain their speech in the face of a hostile government.”
U.S. Circuit Judge Beverly Martin immediately interrupted McAllister.
“The actions in this case were allowed by the defendants,” the Barack Obama appointee said, referring to the lower court’s dismissal of the case that paved the way for the monument’s relocation. “The district court said [the defendants] can move this [monument] and they did.”
“I don’t think that there is anything you have asked for in your complaint that we can give you at this point,” she added.
Lakeland city officials moved the cenotaph – a monument built to commemorate people buried elsewhere – a month after McAllister filed his appeal to the 11th Circuit. Construction crews took four days to move the massive 26-foot-tall memorial inscribed with Confederate flags and a poem.
U.S. Circuit Judge Kevin C. Newsom, appointed by President Donald Trump, wondered aloud why McAllister did not file for a stay. The attorney said he did not believe a stay was necessary and chose to go right to an appeal.
“The appeal was based on the ideas we wanted to bring to this court,” he said.
The judges also peppered McAllister on why one public park was better than another.
“As in all real estate questions, there are three answers: location, location, location,” McAllister responded. “The monument has been moved from the place where it stood for 100 years. It’s not in the historical district. It has been pushed into a closet.”
“If the monument still stands, how is your free speech violated?” Judge Martin countered.
Veterans Memorial Park lies 1 mile from the statue’s former home at Munn Park.
Kristie Hatcher-Bolin of the GrayRobinson law firm, who represents Lakeland city officials, raised many of the same points as the judge.
“Appellants can still exercise their rights,” Hatcher-Bolin said in her opening statement. “They are free to go to the park to express their pride of Southern history.”
“At best, appellants are merely bystanders that are sympathetic with the monument,” she continued. “There’s simply no claim here.”
Hatcher-Bolin also referenced the 2009 U.S. Supreme Court ruling in Pleasant Grove City v. Summum, which held that a donated monument in a public park becomes an expression of government speech. As such, the government has the right to make decisions about the location.
In his rebuttal, McAllister spoke of the “psychological damage” to his clients by moving the monument.
“History matters,” he said.
McAllister, himself the leader of the Tampa chapter of the Sons of Confederate Veterans, also acted as the spokesman of Save Southern Heritage Florida when the group formed in 2015 as a response to the removal of Confederate monuments in the state.
The Florida chapter unsuccessfully sued the Hillsborough County Commission in 2017 for removing a Confederate Veterans War Memorial outside the county courthouse.
Martin and Newsom were joined on the panel by Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointed visiting from the Ninth Circuit.
The judges did not indicate when they will reach a decision in the case.