The Volokh Conspiracy

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Free Speech

Virginia Isn't Bound by 1890 Deed to Perpetually Display Robert E. Lee Monument

"Governor McKinney had no power to contract away the Commonwealth's essential power of freedom of government speech in perpetuity by simply signing the 1890 Deed."


Today's Virginia Supreme Court decision in Taylor v. Northam (unanimous opinion by Judge Bernard Goodwyn) deals with an 1890 deed, which conveyed a Robert E. Lee monument to the State, with the provision that,

The State of Virginia, party of the third part acting by and through the Governor of the Commonwealth and pursuant to the terms and provisions of the [1889 Joint Resolution] executes this instrument in token of her acceptance of the gift and of her guarantee that she will hold [the Lee Monument and the Circle] perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.

In 2020, Governor Ralph Northam decided to remove the Lee Monument from the donated land, and plaintiffs objected. The court concluded, in part:

The merits of the arguments for and against the retention of the Lee Monument in its present location are for the political branches to consider. Our function as a Court is to address the legal claims before us. The essence of our republican form of government is for the sovereign people to elect representatives, who then chart the public policy of the Commonwealth or of the Nation. Democracy is inherently dynamic. Values change and public policy changes too.

The Government of the Commonwealth is entitled to select the views that it supports and the values that it wants to express. The Taylor Plaintiffs erroneously assert that the Commonwealth is perpetually bound to display the Lee Monument because of the 1887 Deed, the 1890 Deed, and the 1889 Joint Resolution.

A restrictive covenant against the government is unreasonable if it compels the government to contract away, abridge, or weaken any sovereign right because such a restrictive covenant would interfere with the interest of the public. "[T]he State cannot barter away, or in any manner abridge or weaken, any of those essential powers which are inherent in all governments, and the exercise of which in full vigor is important to the well-being of organized society." "[C]ontracts to that end are void upon general principles," and they cannot be saved from invalidity by the constitutional prohibition against laws that impair the obligation of contracts.

Governor McKinney had no power to contract away the Commonwealth's essential power of freedom of government speech in perpetuity by simply signing the 1890 Deed. Similarly, the General Assembly of 1889 had no authority to perpetually bind future administrations' exercise of government speech through the simple expedient of a joint resolution authorizing the 1890 Deed. The Commonwealth has the power to cease from engaging in a form of government speech when the message conveyed by the expression changes into a message that the Commonwealth does not support, even if some members of the citizenry disagree because, ultimately, the check on the Commonwealth's government speech must be the electoral process, not the contrary beliefs of a portion of the citizenry, or of a nineteenth-century governor and legislature.

Therefore, any restrictive covenant purportedly created through the 1890 Deed, which would prevent the Commonwealth from moving a monument owned by the Commonwealth and on property owned by the Commonwealth is unenforceable because, at its core, that private property interest is the product of a nineteenth-century attempt to barter away the free exercise of government speech regarding the Lee Monument in perpetuity.

The government's right to free speech is an essential power inherent in all governments, and that agreement, entered by Governor McKinney signing the 1890 Deed as authorized by the General Assembly, is unenforceable. The circuit court also did not err in holding that any restrictive covenants created by the 1887 Deed or the 1890 Deed, as applied to the Commonwealth, are unenforceable because they contradict current public policy and are unreasonable, even without considering the effect of the 2020 Budget Amendment on the enforceability of those covenants….

Seems right to me.