Litigation Update: McMahon v. Fenves

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