I write to you with respect to the 54-page complaint filed against Talbot County relating to the “Talbot Boys” statue. I am a lawyer, and a member of the bar of the United States District Court for the District of Maryland, although I am not a member of the Maryland State Bar. In the circumstances, I am writing this letter solely in my capacity as a citizen/ resident/property owner of Talbot County.
I want to emphasize that I should not be understood as taking a position for or against moving or eliminating the Talbot Boys statue. For the reasons stated below, among others, it strikes me as extremely important to all of us here in Talbot County, and especially each of you as elected officials, that the decision about what to do with or about the statue be made democratically by the Talbot County Council or by the citizens of Talbot County in the context of a referendum or plebiscite.
That decision should not be made by the judicial branch of government based on broad principles of equity or social justice, which are not undergirded by any discernable limiting principles beyond the mood of the day. Simply stated, my main points are these: per the Supreme Court, statues on county property are a form of protected speech under the First Amendment to our Constitution. First amendment rights are not easily or readily suppressed. It also seems quite unlikely that the plaintiffs have (a) stated a claim as a matter of federal pleading rules or (b) brought a winnable claim even should the complaint get past a motion to dismiss. The many theories presented in the prolix Complaint lack any limiting principle, which might explain why no federal or state court so far as I can determine has ever ordered a state or political subdivision to remove a confederate memorial. Neither political party should desire to see the judiciary take over matters of local democratic governance such as is being attempted.
If the County Council does not manage the litigation, it will be managed by the litigation to the detriment of everyone concerned. This is why the County needs to own the problem and also own the solution. Happily, there are a number of options for a unifying solution that should moot the litigation in due course if not immediately.
Neither (i) the federal constitutional claims (under the First and Fourteenth Amendment); (ii) the Federal Statutory Claims( under the Civil Rights Act of 1964 and 52 U.S.C. § 1981); (iii) the Maryland Constitutional Claims (Art. 24, Declaration of Rights, Equal Protection and Due Process; Art. 44, Declaration of Rights, Allegiance to the United States; Art. 15, Declaration of Rights, Use of Taxpayer Money); nor (iv) the single Maryland common law claim for Tortious Interference with Contract appear to state a claim under basic federal pleading rules (Rule 12(b)(6) of Federal Rules of Civil Procedure) and in any event do not appear to present a claim that could succeed in the end under any circumstances.
Turning over local decisions to the federal judicial system based on notions that have no limiting principles is dramatically antithetical to democracy itself and to the whole idea of a republic. Claims by anyone of any race or creed offended by allusions to slavery would have the same basis if brought against the District of Columbia (and many other jurisdictions throughout the country) based on being offended by the Washington Monument, the Jefferson Memorial, or any number of paintings or statutes contained in the Capitol Building, the Supreme Court, in public parks, or indeed the White House. Groups generally aligned or affiliated with these plaintiffs have defaced or torn down statutes of virtually every Founding Father, as well as statues of Abraham Lincoln based on the principles invoked in the Complaint here. This type of litigation is in a way its own form of mobocracy and litigation through intimidation.
As I have already said, I have reviewed the Complaint with some care and am personally of the view that it may well fail to state claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure and that, were the case nonetheless permitted to proceed and litigated to a conclusion, the county would almost certainly prevail. Yet even should the litigation be allowed to proceed, it should not involve any material or meaningful amount of discovery against Talbot County or require the deposition testimony of any county official. The complaint represents a challenge to a decision made democratically through a legislative body duly constituted.
Challenges to legislative enactments do not in the absence of extraordinary circumstances (such as bribery or corruption) involve the compelled testimony of legislators who voted for or against the legislative decision at issue. The leadership of the House and Senate are not called upon to testify every time a private party sues to ask a court to find a legislative enactment to be unconstitutional. In other words, there is little or no reason to believe that the litigation, if pursued, would be as time-consuming or expensive as one might think, although litigation is never cost free in terms of time or money. Other than managing the lawsuit indirectly through chosen counsel, the suit should not directly involve the Council.
And given that evidently no federal or state court has ever compelled the removal of a confederate memorial or confederate paraphernalia under federal or state constitutional or statutory principles, it is obvious that any federal court decision in Baltimore would hardly be the last word on the subject. Moreover, inasmuch as the plaintiffs are seeking to impair the First Amendment rights of Talbot County, there is reason to believe that any unprecedented decision allowing such a silencing of the County and abridgment of its First Amendment rights would end up in the United States Supreme Court (although to get there the Fourth Circuit Court of Appeals would have to affirm the District Court, which seems improbable).
Wholly apart from the probable lack of merit of the Complaint, there is reason to believe that all or most of the plaintiffs may well lack standing to bring the claims they have brought. See Kozlowski, Standing to Challenge Removal of Confederate Park Monuments. This is a uniquely legal, and somewhat technical issue, but no less important here on that account. Standing to assert various claims is only proper where the plaintiff is uniquely injured or affected in a very particular way as a direct and immediate consequence of the conduct at issue.
According to the chart below from Wikipedia, since 1865 there have been some 151 removals of Confederate memorials, roughly 2/3 of them having occurred in 2020. Only two removals occurred between 1865 and 2009. None of these 151 removals appears to have involved removal by court order (although to be sure courts have ruled against these seeking to prevent a political subdivision from dealing with confederate memorabilia or memorials).
|Time period||Number of removals[|
|2015 (after Charleston Church Shooting)||4|
|2017 (year of the Charlottesville attack)||36|
|2020 (after killing of George Floyd)||94|
These removals were marked by events and Louisiana and Virginia within the span of two years. In Louisiana, it was the Charleston Church shooting of 2015 that led the city of New Orleans and others to remove Confederate memorials within a couple of years. And then in August 2017, we saw a rally against the removal of the Robert E Lee statue in Charlottesville turn violent. Both of these events led to the removal of Confederate memorials in many parts of the country or to the addition of counterbalancing memorials.
As I have already mentioned, so far as one can tell no federal or state court has ever ordered the removal of the Confederate statue or war memorial based on any state or federal constitutional or legal principle. Such litigation as there has been on this topic has involved such things as:
License plates. Holders of certain Maryland license plates bearing a confederate symbol enjoined Maryland from ordering them removed until the authority of the State so to act was established on appeal. See here.
Many states have had, and many states still have, statutes actually prohibiting the removal of Confederate paraphernalia by local jurisdictions. There has been litigation around these issues, the issue being whether a State legislature can impair the free speech rights of a political subdivision of the state. See this lengthy (94 pages) and seemingly well-informed entry from Wikipedia on the topic of the removal of Confederate statues.
Our Supreme Court has held that when a town or city government erects or maintains a monument on public property, it is speaking, and that speech is protected under the First Amendment of the United States Constitution. The Supreme Court, by a 9-0 vote, reversed the 10th Circuit Court of Appeals and held that a monument in a public park is a form of government speech and therefore not subject to scrutiny under the Free Speech Clause of the First Amendment. Pleasant Grove City v. Summum, 555 U.S. 460 (2009). As the Court stated:
A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.
Id at 470. In that case, because of the City’s “freedom to express its views,” the Court held that Pleasant Grove was entitled to refuse to display a monument setting out the tenets of a religious group. A fortiori, a political subdivision cannot be forced by a court to remove a free speech protected memorial involuntarily. All of the more than 150 Confederate monuments that have been removed in recent years have been removed by appropriate authorities acting within the scope of their legislative or executive function, not by courts acting against the votes of elected officials or the authority of duly authorized executive authority.
Here in Talbot County, the statue at issue has a long history and came through negotiation to be set off, so to speak, by an inspiring statue of Frederick Douglass. I will note in passing that I was born in Concord Massachusetts and grew up accustomed to reading or hearing the Declaration of Independence on July 4 of most years. For the last decade or more, that tradition has continued, although in my family we also read or listen to the July 5, 1852 Frederick Douglass speech, which can be read here, along with commentary of interest. It is a remarkable speech and he was a remarkable man. The point of my mentioning this is that the physical appearance of the courthouse lawn has been the result of an orderly political process. That process should continue to whatever conclusion the County Council finds appropriate and, one hopes, unifying.
Assuming but without knowing that the County Council would like to avoid the cost and annoyance of litigation and would also like to preserve local democratic control over local issues rather than to cede them to the federal judiciary, there are various ways to seek to moot the litigation without subjecting the County governance to federal judicial supervision of an unknown nature or length of time. For example:
The County Council could vote to have a special election/referendum/plebiscite to leave the decision of what tom do to the citizens of Talbot County. The County counsel in such a circumstance could ask the court to stay the litigation pending the outcome of the referendum.
More realistically, the County Council could vote to modify the lawn or the statue to create a so-called “unity” environment or statue. There are multiple options for a unity resolution. For example (and there are doubtless multiple variations of these approaches)
There is the approach that was proposed by Councilwoman Price back in January of this year if it could be achieved without irreparable damage to the statue itself (see here )
There is the approach advanced by the Preserve Talbot History group: The County Council could vote to add a new monument with statues of Union soldiers (a white soldier and a soldier of the US Colored Troops) on the Courthouse grounds, as was apparently originally intended when the Talbot Boys statue was placed there more than a hundred years ago. I understand that conceptual design for such a statue was presented to County officials in 2018. See here.
Another unifying approach might be to install a civil war monument/memorial similar to the uniquely elegant Maryland Memorial at Gettysburg, which was the subject of a recent article in The Talbot Spy here. If the article is correct, the statue is actually a representation of two civil war soldiers, one confederate and one union, helping each other off the battlefield. Moreover, apparently, they were both young men from Talbot County (Trappe) who carried the battle flags for their opposing regiments.
Talbot County is neither the first nor the last jurisdiction with a need to confront the question of what to do with Confederate memorabilia. Talbot County is also in crucial respects completely unlike virtually all other jurisdictions inasmuch as citizens of Talbot County fought on both sides of the conflict and the significant number of those fighting for the Union Army were in fact members of the United States Colored Troops. There was also the federal occupation of Maryland at the very outset of the war, which was a destabilizing event and one that was endured by no other state. The reasons for this are beyond the scope of this communication, but suffice it to say that the reasons were not on account of Maryland being part of the confederacy.
The recent experience of Franklin, Tennessee might in the circumstances be relevant here. Franklin retained an existing Confederate monument and then built a separate monument honoring Union troops, especially colored Union troops. See article describing the issue and the outcome here. This was a unifying solution to what had been a divisive issue.
There are many reasons why the County Council should seriously consider making moot the litigation by embracing a unity solution, not least the utility of demonstrating political unity in our small community at a time when such a thing is almost nonexistent in these United States.
As I mentioned at the outset, and at the risk of undue repetition, it is my considered personal view that the lawsuit against Talbot County is without merit. The lawsuit is also a fearsome example of self-conscious disunity at work. The complaint paints a distressingly two-dimensional picture in sharp and stark black and white. Everybody who is for the removal of the statue is against slavery; everybody who was or is against the removal of the statue is for slavery and a racist and a Nazi and so on. The complaint leaves little room for any middle ground. The idea of creating unity through litigation is oxymoronic; the lawsuit seems intentionally designed to de-unify. Nothing good can come from the litigation whether the county wins or loses, and bad things can happen either way.
Nor does it seem like a sound idea for the County to enter into some kind of arbitration or mediation under the auspices of the federal court. I would think that all five of you on the County Council would not want to see the federal courts micromanaging your decisions in this administration, or some future administration where others are in control. It therefore strikes me as appropriate for the County to find a workable unity solution that should make moot the litigation.
Litigation creates its own deadlines and pressures, but if the County is to remain the master of its own destiny, it will need to take all necessary steps either to persuade the presiding Court to stay the conduct of the litigation while the County Council continues to work on a unity solution or, failing that, defend the litigation as would any litigant. This probably means filing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and engaging able counsel to file such a brief. This could cost $100,000 or more but that seems to be a small price to pay to preserve and defend local democracy. All of this would be in support of the salutary principle that local speech issues truly ought to be left to a local democratic process that can appreciate and accommodate local interests.
These are my personal opinions, informed by 48 years of federal court litigation experience. That said, I am not providing a legal opinion; that is for you and your chosen counsel. But as a taxpayer, voter, and citizen of this county, I doubt I am anywhere near alone in wanting to see this Council devise a democratic solution that does not involve approval or permission of some distant federal court, bearing in mind that no district court decision in a matter such as this is likely to be final, and especially bearing in mind that it appears to be the case that no local jurisdiction has ever been compelled by a federal court to remove a Confederate Memorial.
Finally, I might also mention that if and when Talbot County were to agree to take some action or refrain from taking some action and in the process agree to be subjected to a court order and ongoing court supervision, the long-term consequences of that could be mischievous and unpredictable. In other words, this County Council has the power, and I suggest the duty, to take appropriate unifying action for the benefit of all elements of the Talbot County community without being subjected to extremely antidemocratic judicial supervision.
I would be happy to speak with any one of you on any aspect of this to the extent desired.
John Briggs has been antitrust and litigation counsel of major companies in the USA, Asia and Europe. He has published dozens of articles on antitrust and taught international competition law at the George Washington University for a decade. He is a graduate of Harvard College and Georgetown University Law School, where he served as executive editor of Law & Policy in International Business.