Excerpted From: Jeremiah Chin, Antimatters: The Curious Case of Confederate Monuments, 103 Boston University Law Review 311 (February 2023) (435 Footnotes) (Full Document)

JeremiahChinIn June 2020, the City of Birmingham in Alabama finally removed one of the oldest monuments to the Confederacy in the United States: the Confederate Sailors and Soldiers Monument. The monument started as a fifteen-foot square stone foundation in 1894 but was rededicated in 1905, adding a forty-two-foot-tall marble obelisk, funded by $1,750 from the United Daughters of the Confederacy (“UDC”) and maintained exclusively by the City of Birmingham for the next 115 years. Like most monuments to the Confederacy, Birmingham's obelisk was placed adjacent to the city capitol and courthouse, at the Southwest entrance of Birmingham's capitol plaza in a park named after a Confederate leader--Navy Captain Charles Linn. Just two-and-a-half miles away sits the historical marker for the Birmingham City Jail where Martin Luther King, Jr. wrote his famous letter explaining the need for direct action against white supremacy because “freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.” However, the removal of the Confederate Sailors and Soldiers Monument was not due to a gradual change in laws, hearts, and minds by the state of Alabama but rather the direct action and justified law-breaking explained by Dr. King.

Like many other cities and states, the City of Birmingham first attempted to remove the monument in 2015, when the City's Park and Recreation Board unanimously approved a resolution to remove the monument in response to the murder of nine Black churchgoers at Emanuel African Methodist Episcopal Church in Charleston, South Carolina. The monument remained up while the City considered options for its removal, but the state of Alabama would soon pass the Alabama Memorial Preservation Act (“AMPA”) in May 2017, countermanding Birmingham and other cities' efforts to remove Confederate monuments. AMPA prohibits changes to any “statue, portrait, or marker intended at the time of dedication to be a permanent memorial to an event, a person, a group, a movement, or military service that is part of the history of the people or geography now comprising the State of Alabama.” Thus, Confederate monuments like the Sailors and Soldiers Monument gained protection under AMPA because they have “been so situated for 40 or more years” and, therefore, could not be “relocated, removed, altered, renamed, or otherwise disturbed.”

A few months later in 2017, the “Unite the Right” rally spotlighted the ongoing relationship between monuments and white supremacist violence when tiki-torch-bearing white supremacists rallied around the statue of Thomas Jefferson at the University of Virginia and then organized the next morning to protest the potential removal of the Charlottesville monument to Confederate General Robert E. Lee, culminating in violence and the murder of Heather Heyer. In Birmingham, this meant the City Council unanimously voted to remove Confederate monuments within the city, even though AMPA would prevent it. Birmingham Mayor William Bell attempted to circumvent AMPA by constructing a twelve-foot high plywood barrier around the monument, obstructing the plaques and writing but not relocating, removing, altering, renaming, or otherwise disturbing the monument. The Supreme Court of Alabama disagreed, finding the obstruction “memorializes nothing” and thus violates the AMPA. While the First Amendment does not restrict a government's ability to select which types of speech to endorse, the City has no substantive free speech right to assert against the State. Thus, the government speech of the City was overruled by the State's speech via AMPA, but the City was only subject to a single $25,000 fine.

Just as the City was moved to act by protests in 2015 and 2017, the protests after the murder of George Floyd in Minnesota spurred a decisive action by the City of Birmingham. In May 2020, protesters across the United States gathered to agitate for rights and recognition, and struck against edifices of white supremacy, vandalizing and toppling monuments to the Confederacy across the United States. In Birmingham, protesters took down the barriers and vandalized the marble obelisk, defacing the Confederate Soldiers and Sailors Monument, spurring the new mayor, Randall Woodfin, to remove the monument and pay the fine, arguing, “[I]t's probably better for this city to pay this civil fine than to have more civil unrest.” Thus, after 115 years, protests, vandalism, and two fines of $25,000 paid by the City, the Confederate Soldiers and Sailors Monument was finally removed.

Confederate monuments are state-sanctioned manifestations of white supremacy that cities have attempted to remove with mixed success. As demonstrated in Birmingham, sometimes it takes a nongovernmental action to spur the government to act. Confederate monuments remain fixtures in conversations on power because they speak with the authority of the government. The Court has recognized that such monuments occupy a special place in First Amendment doctrine known as government speech, whereby “the government speaks for itself” and must be allowed to “‘promote a program’ or ‘espouse a policy’ in order to function.” States, therefore, do not need to provide an open forum for all views but may discriminate and select messages that express the views of the government. Accordingly, government speech depends on the state's ability to control the meaning of the statue--either in selecting or restricting the displayed messages--and the state's choice to align with that meaning exempts it from the censorship, content, or viewpoint discrimination analyses typically applied to public forums. In this way, monuments, often privately funded or privately owned, are given the protection of the state.

Confederate monuments are constant reminders of commitments to white supremacy in the United States. These markers of the Lost Cause mythos valorize white generals, soldiers, and officers. Confederate monuments  emerged immediately after the end of the Civil War and were created in droves after the end of Reconstruction, growing in numbers in direct response to movements for racial justice and civil rights in the twentieth century. Whether in the form of statues, plaques, or place names, these monuments are largely found in common areas and in front of state courthouses and capitols to “claim[] the public square for southern whites, spaces that for more than a century have been not simply white-controlled but also shaped by segregation.”

At least 200 Confederate memorials have been removed, renamed, or relocated by protesters, cities, and states since 2018, but state legislatures moved quickly to stop protesters and municipalities alike. Alabama has disallowed any memorial or monument that “is located on public property and has been so situated for 40 or more years” from being “relocated, removed, altered, renamed, or otherwise disturbed.” Florida enacted an omnibus bill after the protests during the summer of 2020, broadly criminalizing political gatherings with a special section creating an additional second degree felony for destruction or removal of any “memorial or historic property, unless authorized by the owner of the memorial or historic property.”

Confederate monuments exemplify how the state insulates white supremacy through doctrinal paradoxes: they are public yet private; they are speech at the discretion of the government, yet ungovernable by the localities in which they sit. This Article focuses on Confederate monuments because they make apparent governmental and legal commitments to white supremacy--in power and practice, even if not explicitly in name. Confederate monuments exist because white supremacy simultaneously reifies and inverts doctrines of juridical power.

Yet, because the law treats such exercises of racial power as business as usual, this Article looks to physics to help make apparent the ways in which white supremacy inverts assumptions of doctrine to insulate white racial power. Physics refers to the observable material that makes up the known universe as matter but has theorized and identified corresponding material that has the same mass but the opposite properties, known as antimatter. Electrons, by definition, are negatively charged particles; yet, physics has observed positrons, particles with the same properties but positively charged. “Antimatter is a weird topsy-turvy shadow of matter.” Although physicists are certain that antimatter exists, its nature makes it difficult to observe. However, antimatter is understood to have formed with the universe and the basic structures of matter. Antimatter “follows the same strict laws as do conventional particles,” but their inverted charge acts differently in the grand scheme of the universe, allowing scientists to theorize and identify structures and forces of power in nature.

Similarly, Confederate monuments represent the doctrinal phenomena I call “antimatters.” State legislation on Confederate monuments create doctrinal paradoxes in government speech, hate speech, and symbolic speech that insulate white supremacy and ensure governance that runs counter to the democratic, representative, or community-based theoretical assumptions of speech doctrines. Confederate monuments fit the doctrinal requirements of government speech as the voice of the government, but under state legislation, local governments are prohibited from speaking by removing or altering monuments that cities must maintain. They are symbolic representations of the Confederacy, a white supremacist government created with the purpose of maintaining slavery. Local governments that now find monuments distasteful, offensive, or contrary to their purpose are restricted from removing them by state actors. Citizens who contest monuments through ordinary processes of government are thus silenced by state laws-- creating a compelled-speech superintendence between state and local governments. If anyone were to take matters into their own hands and remove the statues on their own as a form of symbolic speech against the white supremacy these statues represent, they would be subject to criminal offenses that have become exponentially more dangerous than those for any ordinary act of vandalism. The special protection for Confederate monuments allows us to take another note from physics and use powers of indirect observation to understand these antimatters. The government is not declaring its support of white supremacy, but by providing special protection for these Confederate monuments, state governments demonstrate allegiance to the ideology the statues represent.

Confederate monuments are thus part of the narratives of power and history in the United States, manifesting a revisionist history to support the perpetuation of white nationalism. This Article proceeds in three parts, providing three connected frames to discuss Confederate monuments: theory, history, and doctrine. Part I provides the theoretical framework I call “antimatters” by building on the works of legal realists and critical race scholars to frame Confederate monuments as antimatters--manifestations of white supremacist governance that are protected by doctrinal facades of neutrality or nondiscrimination yet serve an explicitly discriminatory purpose that invert stated assumptions and purposes of speech doctrines.

In Part II, I provide historical context to Confederate monuments to frame their origins and contentious meaning in social life in the United States. My focus is not on one single monument, but the genre of monuments to the Confederacy. These are statues that commemorate the dead in name only, distinct from gravesites or markers of battles from the Civil War. Confederate monuments at public parks, courthouses, and state capitols memorialize white supremacy and are distinct in purpose, kind, and function from posthumous remembrances of individuals.

Finally, Part III provides a doctrinal framework by triangulating the three key doctrines of law that would ordinarily apply to Confederate monuments: government speech, hate speech, and symbolic speech. This Part collects the intersections of speech doctrines to interrogate the ways the Court defines purpose, process, and perception of monuments as speech under the First Amendment. Considered under speech doctrine, there is an underlying assumption that Confederate monuments are part of a conversation, part of the “mythological marketplace of ideas,” that can be countered, discussed, or removed through ordinary speech and actions. However, I argue that monuments are not ordinary matters before the Court, but rather antimatters. Confederate monuments sit in an apparent paradox of speech doctrines but reframing these monuments as antimatters clarifies how these paradoxes are acts of governance preserving white supremacy under the rhetorics of democracy, neutrality, and federalism.

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Monuments are not just government speech; they represent governance itself. Monument removal became a viable position once Black political power came to fruition in the twentieth century, thus state retrenchment sought to ensure that local Black power did not resist state-wide white supremacy. Confederate monuments, as symbols of white supremacy, entrench white governance. Yet, as antimatters illuminate, Confederate monuments are protected as government speech, but their removal is placed outside the law by the same doctrines defining purpose, processes, and procedures underlying monuments. Courts create typologies to define what government speech is, but once Confederate monuments are so categorized, the expressive, white supremacist content is now “not law” and often untouchable by later governments who wish to reject such affirmations of the Confederacy, like the City of Birmingham, Alabama. However, just as Outkast's declaration about the South sent a message in 1990's hip-hop that there were voices outside the traditional arenas of East and West, the South has declared there are more voices than white supremacy and white nationalism in agitating against Confederate monuments.

Protesters turn the private, government speech into a public forum and contest the existing power structure. Rather than litigate the meaning of the monument before the Court, protesters contest that meaning and change the monument and space through a nonlitigation process. Just as monuments signal empire, public demonstrations against government challenge empire. That speech should, ironically, be protected by the public forum analysis. Drawing attention to the convergence of Confederate monuments and governance can serve to reframe and recontextualize the protest. Sometimes a change in monuments can happen quickly, like in Virginia when the state removed the statue of Robert E. Lee at the center of controversy. The Unite the Right rally and the subsequent counterprotests created an untenable situation for a statue in the heart of the Confederacy. Public forum created contested space, and the government acted in response. A removal is government speech just as the statue's adoption is government speech. The matter of government expression and antimatter of Confederate monuments come into conflict extinguishing both--a political bonus for states that hope to extinguish tension by removing monuments. State laws prohibiting removal entrench the antimatters of Confederate monuments, by adding an additional gloss of neutrality to the government speech doctrine, restraining cities from acting. However, as the symbolic speech doctrine and the frequency of monument topplings demonstrate, this does not prohibit the space from being contested.

Public demonstrations, such as vandalism or forced destruction, are another type of matter used to contest the antimatters of Confederate monuments. The inciting governmental action leads to demonstration against the sites and symbols of governance; cities that could not remove the Confederate monuments under ordinary procedures bring protesters into a direct confrontation. Matters and antimatters collide in a destructive force that annihilates the monument itself. As Frantz Fanon explains, this type of anticolonial violence becomes “a cleansing force .... The praxis which pitched them into a [hand-to-hand] struggle has given the masses a ravenous taste for the tangible.” A government's removal of Confederate monuments may be an attempt to pacify an insurgent crowd contesting the legitimacy of government, but when Confederate monuments sit at the centers of government power, the tearing down of the monument stokes insurgency to contest the monument, the government, and the systems of domination they represent.

Antimatters thus identify power of governance through law and policy. Just as antimatter in physics has an explosive reaction when interacting with its matter counterpart, Confederate monuments signal an explosive interaction between legal matters of ordinary speech doctrine and monument removal, demonstrated by the response of protesters to Confederate monuments. Although state legislation would prohibit the removal of Confederate monuments via “statue statutes,” protesters' reactions have turned Confederate monuments into the power source used in science fiction, harnessing the reaction between matters and antimatters to contest the white supremacy these statues represent. Government speech is explosive when exposed to nongovernment speech in the protected statues and extralegal protests. Thus, antimatters also contemplates the reaction that forms when that “nonpublic forum” is turned into a public referendum on governance itself. The trick for the future will be harnessing that reaction into a sustainable source of power, rather than a flash explosion.

Confederate monuments memorialize the dead to police the living; they speak of governance--by violence and fear through white supremacy. Yet, antimatters render the legal remedies inert. Governmental actions speak louder than government speech in Alabama, where demands for change at a local level cannot be translated into action by operation of law. Antimatters and matters collide in protests when monuments are vandalized or toppled. Destruction of monuments does not threaten to disturb or rewrite history because no history is present in the monuments--they are edifices to a white supremacist narrative of memory that is tethered to historical fact by dental floss.

Confederate monuments as antimatters also remind us that counter-monuments and reeducation plaques are more likely to serve as false equivalences. A memorial to Martin Luther King, Jr.'s contributions to the city of Memphis is not proportional to a Memphis monument to Robert E. Lee or Stonewall Jackson. Rather, it reaffirms the Lost Cause narrative that the struggle of Confederate generals was some noble purpose, on par with civil rights. It legitimizes antidemocratic white supremacy at the center of government by equating it with collective activism to establish democratic voice and representation in government. King was assassinated seeking fair wages and dignity for Black sanitation workers; Lee was defeated while defending slavery. These monuments play into “the very serious function of racism, which is distraction.” The answer may be in refusal, such as Birmingham accepting the fines and costs of removing its Confederate monument, in spite of the state statute prohibiting otherwise. Refusal by protesters leads to their indefinite removal from the public eye for repairs. Like O'Brien's act of protest, the vocal contestation of the statue solidifies the cities' citizens' commitment to racial justice, far louder than cities' administrative removals of monuments at night. Refusal asserts a sense of self-determination outside the confines of externally imposed paradigms--a collective action that defies colonial norms of place and belonging. Toppling a monument refuses governance by terror, refuses the denial of expression--even after all procedures for removal are followed, all governments speech requirements are met, all doctrines are satisfied. Refusal fills the void left by the collision of matters and antimatters to continue the story of a place, the void left by the monument and the reasons why it can no longer remain.

There is no single answer for the question of what to do with each Confederate monument. A mass removal would be a statement of solidarity and a rebuke of the Confederacy that would be deeply meaningful but politically untenable considering the rampant violence of white supremacists. The ultimate choice should rest in the hands of the locality where the monument sits--allowing the remedy to be decided by those who have suffered harm at the hands of the monument and the lingering of white supremacy. Du Bois makes clear that the Confederacy, and the failure to follow through on Reconstruction in the South, left harms in the community for Black and white residents. However, what is normatively clear is that state governments have protected these monuments, and therefore white supremacy, and that this special nexus of protection, antimatters, must be reckoned with and abolished. Removing a Confederate monument unfortunately does not remove white supremacy, but it is part of a struggle for racial justice. An abolition democracy is possible, but it must come from the people and it must confront white supremacy in its varied forms, from the laws to the monuments, in a collision of matters and antimatters.

Visiting Associate Professor of Law, Boston University School of Law. Ph.D, Arizona State University; J.D., Arizona State University Sandra Day O'Connor College of Law; B.U.S., University of Utah.