联邦纪念碑阴影下的法律

D. Gerhardt
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引用次数: 0

摘要

数百座邦联纪念碑矗立在美国各地。近年来,一些著名的历史学家站出来澄清,这些雕像不仅仅是为了纪念,而是为了表达白人至上主义者在种族压迫行为发生时的恐吓。随着公众对反种族主义行动的支持越来越多,许多社区倾向于移除会造成情感伤害、持续造成安全风险、有损平等和团结价值观的公共标志。找到一条合法的搬迁之路并不总是那么容易。那些决定纪念碑去留的政治权力掮客们,往往不是每天都走在他们的阴影里。近年来,南方八个州的立法机构颁布了保护纪念碑的立法,旨在挫败当地的拆除努力。这些法律引发了激烈的冲突,有时会导致愤怒的公民自己推倒巨大的石头或青铜纪念碑。这些挑战为创新的律师行业提供了肥沃的土壤。创造性地运用国家财产法、妨害法和合同法导致了尽管国家保存法禁止的搬迁。当州法律禁止移除或情境化时,社区可能会将联邦法律视为采取反种族主义行动的来源。第一修正案关于表达性言论的原则并没有提供一个富有成效的解决方案。尽管邦联纪念碑具有表现力,但纪念碑辩论双方将第一修正案武器化的努力都失败了,这主要是由于政府的言论原则。考虑到大多数古迹的年代和质量,版权法也不太可能提供有效的联邦索赔。《联邦民权法案》为解决这些争议提供了一个尚未开发但很有希望的基础。第六章和第七章可以用来挑战那些助长敌意工作或教育环境的纪念碑。联邦民权要求将取代各州为防止移除种族敌对标志而颁布的立法。即使在州法律没有规定移除障碍的情况下,那些寻求采取有意义的反种族主义行动的社区也可以将他们的倡议建立在《民权法案》平等的核心价值之上。对于所有面临这一问题的人来说,本文试图提供一个承认历史的法律和战略框架,同时收回我们公共空间的象征性核心,并确保我们所提升的象征肯定了共同的当代价值观。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Law in the Shadows of Confederate Monuments
Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily in their shadows. In recent years, eight Southern state legislatures enacted monument preservation legislation designed to thwart local removal efforts. These laws have prompted bitter conflicts, sometimes leading angry citizens to topple massive stone or bronze monuments themselves. The challenges present fertile ground for innovative lawyering. Creative applications of state property, nuisance and contract laws have led to removals notwithstanding the prohibitions of state preservation laws. When state law blocks removal or contextualization, communities may look to federal law as a source for taking antiracist action. First Amendment doctrine governing expressive speech has not provided a fruitful solution. Despite the expressive nature of Confederate monuments, efforts to weaponize the First Amendment by both sides of the monument debate have failed, largely due to the government speech doctrine. Given the age and quality of most monuments, copyright law is also not likely to provide an effective federal claim. The Federal Civil Rights Act offers an untapped but promising foundation for resolving these controversies. Title VI and Title VII could be used to challenge monuments that contribute to a hostile work or educational environment. Federal civil rights claims would supersede state legislation enacted to prevent removal of racially hostile symbols. Even when state law does not present removal barriers, communities who seek to take meaningful anti-racist action could ground their initiatives in the Civil Rights Act’s core value of equality. For all who are confronting this issue, this Article seeks to provide a legal and strategic framework for acknowledging history while reclaiming the symbolic heart of our public spaces and a means to assure that the symbols we elevate affirm shared contemporary values.
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