Court To Litigants: A City Taking Down Its Own Statue Doesn’t Violate Your First Amendment Rights

Some days, it has got to suck to be a judge. Well, actually a lot of days. Most judicial work is tedious, including contractual disputes or bankruptcy proceedings or maritime law or any dozens of other aspects of litigation that would put most people to sleep.

On other days though, it’s a particular kind of annoying. It’s like working for the world’s worst boss, someone who makes ridiculous requests and expects you to take them seriously.

This case, brought to us by the Volokh Conspiracy, involves deeply unserious people with patently ridiculous arguments. And it’s all handed by the federal court judge like it’s the most legitimate thing to ever land on Judge Janet Hall’s docket.

The First Amendment lawsuit was filed by the “American Italian Women for Greater New Haven” (referred to as “AIW” in the decision). It concerns the city’s decision to remove a statue of Christopher Columbus from Wooster Square, a public park in the city. The city owned the park and the city owned the statue.

Christopher Columbus — an Italian long revered for his supposed “discovery” of lands already populated by indigenous people — has seen his reputation dim considerably over the last couple of decades. This has resulted in similar actions all over the nation, as Columbus’ reputation as a colonizing racist superseded his inexplicably popular failure to locate any part of Asia’s 17.21 million square miles.

The AIW found this move to be reprehensible. And not just reprehensible, but unconstitutional. The statue — a gift to the city from 200 Italian immigrants in 1892 — represented something more to the group than a tribute to a questionable historical figure. According to AIW’s complaint, the group met in the square often to recruit new members, participate in activities, and conduct an annual wreath-laying at the base of the statue.

So, where does the First Amendment violation start happening when a city removes its own property? It’s difficult to tell. But the opinion [PDF] does give us a look at the ridiculous assertions made by the Italian women’s group.

According to AIW, the decision to remove the Columbus statue arose from the City’s “pro-African American/anti-Italian American policy”, a policy that the City deliberately “established and perpetuated.”

This imagined policy is the basis for several claims, including discrimination (against Italians, I guess?), due process violations (because the AIW was not allowed to vote on the removal, I guess?), and the First Amendment violation because… well, that’s what the AIW wrote down in their complaint.

The court decides AIW (barely) has standing to bring the lawsuit, based solely on the “wreath-laying ceremony” that occurs at the base of the statue. But having standing to pursue a lawsuit doesn’t necessarily mean there’s anything actionable to pursue.

All the rest of the AIW’s activities could still be performed in the park with or without the statue. And, as the plaintiffs admit (which undercuts their discrimination claims), they have never been refused access to the park. Plus, the statue was made unavailable to everyone, not just Italian-Americans residing in New Haven.

There’s no due process claim to be had, either. Even if accepted as true, the allegation that the city somehow failed to allow residents to vote on the decision to remove the statue doesn’t work because the group did not have any property interest in a statue erected and owned by the city.

And that leads directly to this blunt dismissal of the group’s truly bizarre First Amendment claim.

Finally, in Count Four, AIW alleges that the removal of the statue violated its First Amendment rights. This claim fails, however, because the Columbus statue is government speech and, as such, AIW has no cognizable free speech interest in it. Indeed, the Supreme Court has directly foreclosed such a claim. In Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009), the Court “held that the messages of permanent monuments in a public park constituted government speech, even when the monuments were privately funded and donated.” See Shurtleff v. City of Boston, Mass., 142 S. Ct. 1583, 1590 (2022) (summarizing Summum). Where a city is “communicat[ing] governmental messages”, as is the case here, it is “free to choose the [monument it displays] without the constraints of the First Amendment’s Free Speech Clause.”

That should be the end of this nonsense. The AIW is free to serve up an amended complaint, but it’s impossible to see how the group could come up with an actionable claim. The statue was the government’s to keep or remove. And it chose to remove it. Being angry isn’t the same as cognizable legal claim, something far too many plaintiffs fail to understand.