Litigation Update: McMahon v. Fenves

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In a matter of first impression, the Fifth Circuit Court of Appeals recently issued an opinion in the consolidated case of McMahon v. Fenves, concerning the removal of historic Civil War and World War I monuments to American veterans from the University of Texas at Austin and Travis Park in San Antonio.  The Court cited lack of standing that precluded its jurisdiction over the controversy under Lujan v. Defenders of Wildlife.  The issue of standing is itself of interest, because the question in this context concerns who has authority to control societal memory.  Plaintiff-Appellants initially cited to state law cases from Hawaii, New Mexico, and Maine that provide a public-interest exception to general standing requirements.  This exception provides for standing to any member of the affected public in a matter of general public interest.  Plaintiffs in the instant case argued that the public interest to protect core political speech should provide standing.  Plaintiffs contended that political speech is a general good that should be given an exception to the general standing requirements, as political speech enjoys protections in all other areas of law that should, here, be recognized in the protection of historic monuments that communicate political speech.  While federal and state constitutions protect core political speech, the question arises as to what protections, including constitutional, should exist to protect historic political speech meant to be expressed in perpetuity.  The Fifth Circuit, as an intermediate appellate court, has reasonably applied a temporally narrow interpretation of standing of historic political speech that does not include successor associations to intended beneficiaries, nor successors to testamentary beneficiaries.  However, in an era unprecedented in American history in which historical memory is continually challenged, the preservation of societal memory may well deserve an exception to the general standing requirements under Lujan.    

Featuring: 

David D. Vandenberg, Staff Attorney, Eighth Texas Court of Appeals

 

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Litigation Practice Group, was recorded on Thursday, February 27, 2020, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is, "A Litigation Update on McMahon v. Fenves." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are very fortunate to have with us Mr. David D. Vandenberg, who is a Staff Attorney with the Eighth Texas Court of Appeals and is President-Elect for the Texas Association of Appellate Court Attorneys. After our speaker gives his remarks, we will have time for your questions.

 

Thank you very much for sharing with us today. David, the floor is yours.

 

David D. Vandenburg:  Thank you, Wes. Thank you for being on this call. I want to say one thing first as a threshold issue. I'm a Staff Attorney at the Texas Court of Appeals in El Paso, and everything about this case or these consolidated cases has nothing to do with Texas courts or any kind of cases that might be pending or might be thought to be filed in Texas. So this is really federal cases, facts from two Texas cases in federal court. We'll get right to that.  

 

      I want to talk about a few things. First is the facts of the cases, then really looking into the government speech doctrine. When these cases were originally filed, that was the main concern about how to deal with the government speech doctrine that the government actors were asserting. And then problems with the government speech doctrine as it's been currently applied and looking how to remedy those problems.

 

      So the real issue in this case is standing. That's what the court of appeals really focused on, I think, properly in their opinion. So the facts of the case are such that there's two cases. One is a series of confederate statues at the University of Texas at Austin, and the second case involves a war memorial to the Confederate dead in Travis Park in Downtown San Antonio. So I'll have to go back and forth between each cases. They were consolidated at the Fifth Circuit Court of Appeals.

 

      The Austin case began when the original donor to the University of Texas in Austin, a man by the name of George Washington Littlefield, made a very large and generous gift. He was a former officer in the Confederate Army, had done very well after the war in West Texas with cattle, and had no issue. So what he decided to do, he and his wife, was to make a major gift to the University of Texas.

And there were a lot of different terms for the gift, but the most important thing for him was that there would be a series of statues that would be erected on the main campus, the University of Texas—it was the only campus back then. And he provided the means to do that. He had a sculptor named Pompeo Coppini, very well-known sculptor at the time. He provided millions of dollars to the University of Texas through a grant of land, cash donations, a lot of different things.

 

These were given to the University of Texas through a will, testamentary bequest, and the university accepted this gift. There were a lot of concerns about it because of the nature of it. It was Confederate monuments, and the Confederate cause was controversial throughout history. If you look at the history of Texas, if you look at Southern states, but in particular Texas, a lot of controversy whether the war should've been fought. And what was the purpose of the war? A lot of controversy around that.

 

So the university did eventually accept the entire gift. They erected the statues around in the ‘30s. There was a big ceremony for that. Again, controversy around the ceremony about the appropriateness of putting these statues up. But again, these statues were up from the ‘30s up until about 2015.

 

At that time, there was a new president at the University of Texas, Gregory Fenves. He decided with a group of a commission that he put together to remove the statues. Again, controversy around that, but they were removed, and that's when the lawsuits began.

 

In San Antonio, a very similar situation. There was a statue put up, Travis Park Monument. It was a very generic statue back in those days. If you wanted to put up a monument to the war dead, whether it's the Union dead or the Confederate dead, you could go to these sculptor studios, and they would put together a Union soldier or a Confederate soldier or a Spanish-American War soldier. And you would just put your monument up, and they would change the wording. So that's what they did in San Antonio.

 

Subsequent to the erection of the Travis Park Monument in San Antonio, the U.S. Congress provided a gift to "the Confederate camp in San Antonio." And it was a gift of two cannons from the Civil War. The Confederate Camp in San Antonio met with the mayor and the city council, and they jointly decided they would put two cannons on either side of the Travis Park Monument. So that's the monument as it was before it was removed.

 

The issue here primarily is one of standing. Who has standing to sue on behalf of these gifts or the people who erected these gifts? So that's the issue right there. Before we get to the standing, one of the most important issues regarding a standing, to back up a second, is what kind of standing are we looking at? There's constitutional standing under Lujan, which is the most important standing that is used. The State of Texas applied this to the Supreme Court. But again, it's just the regular standing requirement, a concrete particularized injury, it has to be actual imminent, not conjectural or hypothetical, fairly traceable to the challenged action, and it has to be regressable. So those are the main prongs for the Lujan standing.

 

The problem with these cases has always been the nature of the particularized injury. What is particularized here? Now, the plaintiffs in these cases pointed out the nature of the erection of these monuments. What has happened is that there's an organization called the Sons of Confederate Veterans, which is the successor to an organization called the Confederate Veterans' Organization. I forget the exact name, but they were formed by the Confederate veterans after the Civil War. There's a companion organization called the Sons of the Union Veterans of the Civil War.

 

Sons of Confederate Veterans, again, have the documentation that they were the successors in interest to the Confederate veterans, which was the Confederate Camp which received the gift of the cannons for the Travis Park Monument. There's a history of these monuments in Texas, that this is not just an isolated incidence of what's going on. These Sons of Confederate Veterans is an organization that's recognized by the Veterans Affairs as a lineage society.

 

The general society of the War of 1812, the Daughters of the American Revolution, Sons of the Union Veterans of the Civil War, and Sons of the Confederate Veterans are all authorized by the Veteran Department to maintain Civil War veterans' graves, and they do so. Sons of Confederate Veterans has worked with the State of Texas to mark Confederate graves all over the state. Fort Lancaster Historic Site is one place that they've done that.

 

Members of these organizations, or the Sons of Confederate Veterans in particular, they today still go out and they maintain monuments to the Confederate dead, to the Union dead, and to other American veterans. One of the aspects of this case is that Congress declared that Confederate veterans were American veterans for purposes of veteran benefits. They did this sometime in the ‘50s.

 

This federal recognition of the Americanization, if you will, of Confederate veterans' legacies -- one of the things also about this organization, the original one, the Confederate Veterans' Organization and the Sons of Confederate Veterans is they include black veterans. That's not well known, but one of these black veterans is James White, who's a Texas representative. He presented on this case his heritage of being a direct descendant of a black veteran of the Confederate Army. So factually, the nature of the armies, the nature of the Confederate Armies, the nature of the Union Army becomes relatively mixed given the historical evidence here.

 

In fact, it's so mixed that many of the clients wanted to litigate the Civil War in court again which would not be a winning proposition according to what the attorneys filed. Anyway, there's a whole series of monuments which have been erected or maintained: a public cemetery in McDade, Texas, awards to Tejano students in South Texas made by the SCV, oldest public cemetery in Austin has a Confederate memorial in it. There's a Confederate cemetery in San Antonio. The Texas State Cemetery in Austin has a very large section devoted to the Confederate dead and a large monument to Albert Sidney Johnston, who's buried there. Albert Sidney Johnston had one of the statues at the University of Texas.

 

So the issue, really, as it's being presented by the defense on this has been that these monuments are, of course, offensive, and they're examples of white supremacy or racism or these types of things. The Sons of Confederate Veterans denies these in their entirety. But that's not really the main point here. The main point is what are these monuments express in and of themselves?

 

One of the doctrines that the government actors used in this to a great extent was the government speech doctrine. And what the attorneys on this and what the clients wanted to do on this was to really call into question the limits of the government speech doctrine. So the government speech doctrine really originated in a case, Rust v. Sullivan, 1991, U. S. Supreme Court. And in that origination of the government speech doctrine, one of the things in the opinion which is salient to our cases here is the holding the government may not discriminate against government subsidized activities solely on the basis of viewpoint. And so it was that preservation of viewpoint diversity which was presented in that.

 

A really well-known case which most people know about the government speech doctrine is Pleasant Gove City, Utah v. Summum. That's a case where a very small religious group, or maybe a cult perhaps, wanted to put a monument in the city park in Pleasant Grove City, Utah. They were denied, and Justice Alito wrote the opinion on that. In terms of the government speech doctrine, Justice Alito appears to be the one furthering this doctrine and determining its boundaries. But in that one, he said the government actor is entitled to say what it wishes and to select the views that it wants to express. That one was a placement of a permanent monument in a public park, and the determination of the placement was a form of government speech not subject to First Amendment protections.

 

Very interestingly afterwards, there was a denial of cert to the U.S. Supreme Court under a case called Nurre v. Whitehead. Alito wrote a dissent on that one, and in that dissent, he wrote, in terms of the public school, "Public school purports to allow students to express themselves, it must respect the students' free speech rights. School administrators may not behave like puppeteers to create the allusion that students are engaged in personal expression when in fact the administration is pulling the strings." So that's setting a limit on government speech doctrine right there.

 

One of the things that is important involving the government speech doctrine is a case Walker v. Sons of Confederate Veterans, Texas Division, that was in 2017. That was the license plate case. Sons of Confederate Veterans wanted to put a government-sponsored license plate like you see pro-choice or sports teams, all those types of license plates. So the Sons of Confederate Veterans wanted to have a license plate that had a seal which has the Confederate battle flag on it. And the battle flag was thought to be offensive, racist, and an example of white supremacy. In that one, it was determined by the U.S. Supreme Court that there was not a -- Sons of Confederate Veterans did not have a right to have a license plate put forward by the State of Texas.

 

What's very interesting about this case, though, is Justice Alito's dissent in this. Alito had put together a three-part factor test to determine whether a speech act is government speech. First part is that a public monument is government speech. Second part is that those who select what goes on a government object convey a government message, but I think the most important aspect here is the fact that there's spatial limitations.

 

With the Summum monument, for instance, there's a spatial limitation. You can only put so many monuments in a public park. Same thing should be done with license plates. There's an unlimited number of license plate designs that could be made. So Alito, in his dissent, said that there should not be any limitations for government speech purposes on license plates. So, of course, he was in the dissent on that, but that's an important point here. The government speech doctrine has to have some limits.

 

Right now, according to the jurisprudence of the federal supreme court, there doesn't appear to be much of a barrier to the extension of the government speech doctrine. Alito's dissent in Walker v. Sons of Confederate Veterans, Texas Division has a proposed limitation to the speech, but -- government speech doctrine, but it hasn't been approved in any fashion other than through this dissent. And that's what the plaintiffs wanted to do in this case, McMahon v. Fenves. What is the limit of the government speech doctrine? Where does it go?

 

One of the problems here, and the central problem, is standing. Who does have a problem to enforce standing on this? In these cases, again, we have two. We have the Austin case, and we have the San Antonio case. Standing was asserted because the plaintiff was a direct descendant of George Washington Littlefield, who made the first major donation to the University of Texas, and there were testamentary devise. So through this testamentary devise, who has authority now to enforce its terms?

 

Obviously, most of the terms are not enforceable because the beneficiaries have all died. They've been dead for quite a long time. Well, in that event, who can, in this instance, enforce the testamentary term? Now, the statue is a different aspect than the rest of the terms. Most of the terms are grants of finance, money, or land, or objects that are given to the university. So once the bequest is made and delivery has been performed, it's there unless a direct beneficiary wants to contest that.

 

But here we are, a few generations later, and we have a monument that was put up presumably in perpetuity. Now, if we have a monument that's setup in perpetuity, who has the right to defend the speech that that monument expresses? This case was, because of the narrow case here, it's not about all the rest of the parts, but it's primarily the speech of this monument. With the San Antonio case, it's very similar in that regard because once the organization that accepted the intended benefit from the U.S. Congress to put the cannons up by this monument, who would then have the standing to assert the enforcement of this gift?

 

Again, we had the Confederate Veterans Organization. They, of course, all died, but they legally transferred their existence and their goods, everything they had, to the Sons of Confederate Veterans. So we have a clearly defined successor organization. Now, the Fifth Circuit Court of Appeals determined that neither the direct descendant of George Washington Littlefield nor the Sons of Confederate Veterans had standing to sue these government actors to enforce the gifts.

 

The question is what other ways do we have besides the clear requirements for standing under Lujan? There are other ways of asserting standing, which were done in this case, but they weren't readily accepted. The rules for standing, kind of a collateral standing rule, is public interest standing.

 

Public interest standing has two sides to it. There's a majority view, and there's a minority view. Majority view is best expressed in a case called Hooker v. Edes Home, D.C. Circuit, 1990. That's a case about beneficiaries to a home for aged and indigent where the trustees threatened to destroy the existence of the trust. The second way -- that's the majority view of special interest standing. There's a minority view of special interest standing. And frankly, the minority view is of greater use here.

 

That's a relatively liberal standing view, and it's used in some states. In particular, it's recognized in Hawaii; it's recognized in New Mexico and in Maine. So looking first at the minority view, there's a wonderful case out of Hawaii called Kapiolani Park Preservation Society v. City and County of Honolulu. And in that case, Kapiolani Park is a large, urban park right between Waikiki and Diamond Head and was given to the city. It was a royal donation during the time of the Hawaiian royalty. The park still exists. The city of Honolulu decided that what they want to do is put a restaurant in the park, but that's not what it was originally given for.

 

The attorney general of the State of Hawaii would not enforce the terms of this public charitable trust that was given to the citizens of the state, but there is a provision in Hawaii that citizens of state would be left without any kind of protection without a remedy. So any citizen of the State of Hawaii can sue to protect the public charitable trust that was given to the state.

 

There's another interesting case out of Maine called Fitzgerald v. Baxter State Park Authority of Maine, 1978. And in that one, there was a sub-group of Maine people who actually used the park. They were the primary class of individuals, Maine citizens, and you had a smaller class, which are a people who went to this park. And then you had a smaller group of five people who were deemed to have standing to sue the State of Maine to protect how the park would be used, special interest standing. New Mexico has, as I said, also has a provision for that as well.

 

Of course, the State of Texas doesn't have that. That was clarified in a case called Coffee v. Rice University. That was a case in which when Rice University in Houston was established, there was a scholarship created. The scholarship, under its terms, could only be used for white people. So if you weren't white, you were not eligible for the scholarship. Well, obviously, under current public policy requirements, that cannot stand. And again, who has the authority to sue on that? In Texas, it has to be the attorney general.

 

But when you have a case like this, getting back to McMahon v. Fenves, when the attorney general has a requirement to defend the University of Texas, who then can defend these public charitable gifts? The testamentary gift made by George Washington Littlefield was expressly made to the benefit of the citizens of Texas born 1860. So apparently back when he made that gift, there may have well been a provision that any citizen of Texas could defend that bequest.

 

There is a heritage protection act in Texas, which were part of this suit, but they weren't really brought forward much. The Texas Antiquities Code grants statutory standing for individual plaintiffs in these issues. And the language is very clear. It's very much like the Littlefield bequest, the testamentary requirements. But under the Texas Antiquity Code, any citizen of the State of Texas can sue under the Texas Natural Resources Code to protect landmarks. And there's definitions of what landmarks are.

 

But, again, the clients on this one in McMahon did not really place a lot of emphasis on that standing, allowance on the Texas code one, because it's a standing that's allowed under Texas law, but this is a federal case and they were really suing primarily under federal law. So they didn't really put that. And even if they were to do that, it's questionable under current standard requirements under Texas law whether that's even enforceable anymore. That's really where that went to.

 

So again, I'm going over the majority view on public interest standing. That's actually interesting, and there was a couple of other cases in which standing is implied. And these are cases in which public charitable trusts are implicated. In particular, there was a case against Harvard University. It's a case out of Ohio. There was a case out of Ohio. There was a widow. She and her husband owned a large tract of property. There was a cemetery on that, and it was a cemetery of historical importance. So she donated the land and the cemetery to Harvard University under the condition that all the artifacts, relics would remain on the land and be used as a place of study on site.

 

Well, after the widow died, a few years passed. Harvard University decides they're going to dig up everything at the cemetery. It's an Indian cemetery, and they're going to transfer it to the Peabody Museum at Harvard. So the beneficiaries of the will sue Harvard University under the theory that because Harvard rendered the public charitable gift impossible or impracticable to fulfill, the corpus of the trust has to be returned to the estate. That's exactly what the Sixth Circuit Court of Appeals ruled on.

 

There was another similar case involving West Point. Again, a widow, her husband had been a major general in the army, class of 1876. They had done very well. They loved the Army, and they loved West Point. And she had some money, she donated it in her will with the express purpose that it would go to a building at a specific site on the campus at West Point on the Hudson River. She dies, a few years pass. And the administrator for West Point decides that it would be better used for a different purpose. And they wanted to use that plot of land for something else under their planning, so they had changed their planning on that.

 

Well, again, the residual beneficiary, Connecticut College, sued on that stating that, again, the donee of a public charitable gift rendered the gift to be impossible or impracticable to fulfill and therefore, the corpus of the gift had to be passed on to the secondary beneficiary. That's exactly what the D.C. Court of Appeals ruled.

 

There's a third case which is also interesting. It's about Smithsonian Institution. There was a wealthy man. He decided he really loved the Smithsonian Institution's underwater research program. They had some submarines in the ‘60s. There were TV shows about that. He was enamored of that. He gave a large chunk of money as a straight up donation to the Smithsonian with the express purpose that it would be used for their submarine research.

 

This man did not die, but there was a terrible accident on one of the submarines. Everyone died, and the Smithsonian said we're out of the submarine research business. It's too risky. So the donation that was given to Smithsonian for the express purpose of submarine research, they used for a different purpose. Again, the man, at that point, was still alive. So he sued to have that returned or to be used for its purpose. D.C. Circuit Court of Appeals decided that that should be sent to the organization which bought the Smithsonian submarine -- they had one or two left over after that terrible accident.

 

So, again, whenever a donee of a public charitable gift receives that gift and renders it impossible or impracticable to fulfill, it has to be returned to the estate or, as the Smithsonian case shows, it has to be sent directly to the grantor's intent.

 

Wesley Hodges:  Very good. Well, thank you, David. Looks like we do have one question out of the gate. David, let's go ahead and go to that caller.

 

Michael Wright (sp):  Good afternoon. My name is Michael Wright, and I had a question about whether there's a circuit split or some other circumstance, perhaps involved in the Hooker case, that would justify the effort for a cert petition to clear up this question which may go beyond just Confederate monuments and affect other aspects of public statuary or other certain artworks or expression in the public space.

 

David D. Vandenburg:  Michael, that's an excellent question. That was something I was wanting to discuss, but because of the limitation on time, I decided to bypass that one. The plaintiffs on this case are aware that there was very likely a circuit split here. And, as I understand it -- I'm not part of that group anymore. As I understand it, they are considering whether to go ahead and file for cert based on that circuit split. But, again, they're doing a more in-depth legal analysis of whether one, one exists, and two, if it does, what will they assert with that? That's a very astute question.

 

One of the things about this case when it was first initiated, it became very obvious that this was not really a case about Confederate monuments. I mean, on its face, it absolutely is, but it was really a case, or two cases, that dealt with the preservation of historic memory. And if you want to go ahead and destroy a culture's historic memory, you would always shoot at the weakest point, which is the areas where there's a lot of controversy.

 

The Civil War and place of the Confederates obviously, since even before the Civil War, was an area of great controversy. But we always saw that this was only the beginning of an attempt to erase historic memory from the American consciousness. And I say that because just yesterday, I believe it was, there was a report that, for all of ya'll who aren't in Texas, I'm sure you know about the Alamo. There's a huge cenotaph that was created by the same artist who created the statues at the University of Texas, Pompeo Coppini, to remove the cenotaph, which is the memorial to the defenders of the Alamo from where it is, put it several blocks away at the historic San Fernando Cathedral in Downtown San Antonio.

 

So the issue here, at its core, is not so much whether the confederates were good or bad or somewhere in the middle. That's obviously one of the concerns, but the core concern is who has the authority, who has standing to preserve the historic memory? And that's where the government speech doctrine fails us. Because so far, who has the standing to defend this? And that's the question that has been posed.

 

Michael Wright:  Well, I had a follow up to that, and that is if the successor organizations like the Sons of Confederate Veterans or the Sons of Union Veterans, etc. don’t have standing, could we be in a world where there just is no party anymore and that these monuments are simply there at the pleasure of whoever has current political authority to remove them?

 

David V. Vandenberg:  Well, apparently, that's the case. And one of the arguments that was made in federal court was exactly what you're talking about. I'm not trying not make any political statement here, but Trump is our president. He was elected, and let's say Trump decided that he, like some people assert, that he had an overreaching ego, and he decided he was going to put a statue of himself at every federal courthouse in the country. So there was an appropriation made. It was properly done, and we have now a statue of Trump before every federal courthouse in the United States.

 

      Once Trump is no longer president, let's say Hillary Clinton becomes president, and she does the same thing. I'm going to take all those Trump statues, and we're going to melt them down and we're going to put Hillary Clinton statues. And then we have the third person who comes along. So without a preservation of historic memory, our political consciousness can only remain current for a very short period of years.

 

And so far with the cases that we've seen that come through the courts, this core issue has not been addressed. We attempted to address here it here through the government speech doctrine, and one of the things that we asserted—and probably not as well as it should've been. I was not on the case at that point—was the minority view of the public interest exception for standing might be a very good way of doing that because free speech is a core political speech.

 

And if a person has the right to express core political speech in a way that they see fit, who's going to defend this type of core political historic speech? So I can go out personally and express myself politically in whatever way is appropriate. But if someone puts up core political speech, supposedly in perpetuity, and then generations go by and a century goes by or 150 years go by, who has authority to keep that there? Right now, there is no historic memory.

 

      If I may, I'd like to point out a second issue on that. In Germany, they were faced with the same thing but much worse. There were the extermination camps that the S.S. produced. Now, they still exist. If you go to Dachau or if you go to Auschwitz, you can see that. You can see the camps. You can see the extermination, crematoriums, the places where the firing squads were. You can see all these places. And the Germans were very clear about that. They did not want to lose the historic memory on that because it was very important to know their errors as well as to know their victories. And they wanted to make sure they didn't forget their errors.

 

And whether or not the confederacy was an error or not, it's not the issue. The issue is the preservation of historic memory in all its forms. So the Germans made a political decision: we're going to preserve those. And in this country, we haven't gotten that far. We haven't decided how we're going to preserve historic memory other than every few years having it thrown up.

 

Michael Wright:  I just had two other quick things. One is Article III standing is notoriously difficult compared to most state courts, and I was wondering, I think you were saying that there is a Texas Antiquity Act that would confer broader standing, but that was viewed after you studied it as something that was not advisable. And I was curious to follow up on that because I was thinking if you strike out on -- or if the plaintiffs strike out on federal standing, is there a possibility of standing in state court to bring this?

 

      And then finally, could you just be up against a result-oriented court that does not want to get into these issues or wants to cut the plaintiff off at the knees and not get into the merits?

 

David V. Vandenberg:  It's hard to know what the intent of the court is. There's so many things that go on in courts. It's really very difficult to place a clear intent on their actions. But, as you say, Article III standing's very difficult. It's a high measure, and it's made that way on purpose. There has to be a limit with this.

 

      An example is I'm a descendant of a Revolutionary War heroes, and the Battle of Saratoga was fought on my ancestor's land, and they still have houses on the battlefield. The Nielson house was the headquarters for Gates at that. So the Park Service has that. It's painted red, last I saw, so if they go back in and they say, "We want to paint it green, because we think that's more historically accurate." Now, would I have standing to sue on that?

 

      I would hope not because there has to be a limit. You have to cutoff standing somewhere, and the line has been drawn very narrowly with federal courts. And there's a good reason, but what we're looking at here is the protection of core political speech that's put up in perpetuity as historic remembrance. And, again, because it's core political speech, the government should have no say over its content.

 

      If you go -- the government can't restrict libel against itself for political purposes. You can sue the government for libel. It doesn’t happen very much, but it's a possibility. The government has no authority over content or any context. Political content cannot be controlled by the government, but that's exactly what the government speech doctrine does. It allows the government, whatever government actor it is -- it can be your county. It can be the federal government.

 

The government actor has authority over the content of political speech, and that is against every constitutional principle regarding free speech. It's there to protect political speech primarily. And we are in a situation where the preservation of political speech over time has no protections that we can see at all, and there should be some kind of protection. There should be some kind of limit. Alito suggested some. It's a good start. I don't think it's a place to stop, but it's a good start.

 

Michael Wright:  One question, is there a better shot at standing in the Texas State courts?

 

David V. Vandenberg:  Well, there is, I think. I'm not really sure, but these clients, they already tried that, and they didn't do well with that. And I think that was a pleading error more than anything else. I think if they had pled differently, they may well have had standing. I don't really know. It's hard to predict what should've happened, but looking at their pleadings below, I think that they made some errors.

 

Wesley Hodges:  Fantastic. David, is there anything that you'd like to dive into more detail today before we end our call?  

 

David V. Vandenberg:  Sure. I just want to make a couple extra points. I didn't really discuss that the majority rule for the establishment of special interest standing under Ede's Home has some prongs. I'm not going to go into that now. I'll just mention it. To establish standing there -- in Mike Wright's question, this is a good way to establish standing. Plaintiffs have to show that they are members of a class of present or potential beneficiaries who are sharply defined and limited in number in order to enforce a charitable trust or gift.

 

      And secondly -- there's only two prongs. Secondly, the trustees or donees are proposing an extraordinary measure, threatening the existence of the trust, rendering it impossible. Hence, raising an issue that by its nature can only be tried once. So that's a majority rule. I think that's a good way to go on that to protect these things. But, again, under Texas law, the only person who has authority to defend public charitable trusts is the attorney general. So the minority rules is the way to go around that, as I can see.

 

Secondly, the last thing is there are other cases that are relative to this issue. New York City, the statue of Christopher Columbus in Columbus Circle was threatened. Mayor De Blasio said it should come down. It was a racist statue, I believe, if I remember correctly. That was settled because major players in the city complained, and they were able to get the mayor to stand down on that, basically.

 

In Memphis, there were some statues there that were in controversy. And that was resolved, I don't recall how that was done at all. New Orleans in Louisiana, they have had some statues removed there. I don't think that because of the nature of the law in Louisiana that anyone other than the government can chime into those.

 

There was an interesting case in Minnesota where a bust of Abraham Lincoln was accused of being racist, a racist bust. And I think that was resolved by leaving it there in the capitol in Minnesota, as I recall.

 

I bring these up because it's not just Confederate monuments. We have Christopher Columbus in New York. We have Abraham Lincoln in Minnesota. And now, in Texas, we have the Alamo defenders, the monument to them wanting to be removed, removed and put somewhere else, still in public display but at a different location.

 

These issues are currently very cogent. They're not as hot as they were. When these Texas cases, McMahon v. Fenves, started, there were threats of riots. There were people on public media coming forward saying that they would kill people. Violence was threatened in various ways.

 

At the very least, and it's not a least, it's a great public good, the violence that was threatened around these statues has terminated. Seems like the parties have decided they will go with legal process. They're not going to try and do self-help through whatever means they think is available to them. In a great way, these cases have helped the rule of law by bringing people into the courts, resolving disputes there, stopping threatened violence.

 

The Travis Park Monument in San Antonio, there was demonstrations. Hundreds of people were there. It appeared very dangerous at one point. So regardless of how they resolve, violence was not used. And I think, if anything, that can only be a great benefit to everybody. So but still, we have the issue of the government speech doctrine. Can the government continue to use that in such a way that there's no limit to it, as far as we can tell?

 

Wesley Hodges:  Fantastic. Well, David, this has been a very enjoyable hour. Thank you so much for spending your time with us. So on behalf of The Federalist Society, I'd like to thank you for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining us for the call. We are now adjourned.

 

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