Document Type

Article

Publication Date

3-23-2021

Abstract

In the wake of such tragedies as the Charleston, South Carolina mass shooting, the deadly Unite the Right Rally, and the death of George Floyd, various communities have engaged in efforts to remove Confederate monuments from public spaces. These removal efforts frequently result in litigation focused on ownership rights, government speech, and other claims. This article asks what responsibility the judiciary and litigants have to acknowledge that Confederate monuments—for better or for worse—are creations of public art.

Whether the monuments stay or go at the end of a given lawsuit, the outcome affects the public art policy of the subject community. The courts and the parties need the language of the arts policy discipline to appropriately contextualize those decisions. This article seeks to provide courts and litigants with such an understanding and the language necessary to engage those policy ideas.

To that end, Part I provides an overview of the research methodology used to organize and analyze the linguistic data in the judicial opinions resulting from Confederate monument removal case law. Part II provides an overview of that body of case law, including the typical types of monuments at issue, the typical litigants involved, and the typical claims and procedural postures presented. Part III provides a framework of public art policy, identifying three typical public policy goals for public artwork, including: the historic value proposition (art as monument), the functional value proposition (art as amenity), and the democratic value proposition (art as the agora). Part IV details the linguistic trends emerging in the case law using a grounded theory methodology. It identifies six rhetorical categories for understanding how courts and litigants typically address the public art implications of Confederate monuments, including: artistic content/context, patronage, arts as speech, ownership interests, physical integrity of the artistic piece, and public utility. Part V provides an empirical linguistic analysis from the coded data and analyzes how those trends relate to or diverge from the public art policy framework described in Part III. Part VI discusses the opportunity presented to jurists and practitioners alike to better understand (and use) the rhetoric around Confederate monuments to inform their judicial opinions or their advocacy. Particularly, it argues for more local control over monument removal decisions because local governments are best positioned to determine if a Confederate monument is serving the values typically performed by public art in a given community. Finally, Part VII provides a brief conclusion on the importance of recognizing the public art principles at play in Confederate monument removals. 56 Gonz. L. Rev. 1

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