United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED August 25, 2021 No. 20-50155 Lyle W. Cayce Clerk

Albert Sidney Johnston Chapter, Chapter No. 2060, United Daughters of the Confederacy; Robin Terrazas, President; Jean Carol Lane, First Vice President,

Plaintiffs—Appellants,

versus

City of San Antonio,

Defendant—Appellee.

Appeal from the United States District Court for the Western District of Texas USDC No. 5:17-CV-1072

Before Smith, Clement, and Oldham, Circuit Judges. Edith Brown Clement, Circuit Judge: Three events shaped this lawsuit’s genesis. First, in 1899, the Barnard E. Bee chapter of the United Daughters of the Confederacy erected a monument of a Confederate soldier in a San Antonio Park, also placing a time capsule beneath the statue. In 1932, the Albert Sidney Johnston chapter of the United Daughters of the Confederacy formed, and that chapter functionally took the place of the Bee chapter when the Bee chapter dissolved Case: 20-50155 Document: 00515994816 Page: 2 Date Filed: 08/24/2021

No. 20-50155

in 1972. Finally, just over a century after the monument was erected, the City of San Antonio removed both the monument and time capsule. The ASJ chapter sued the City, claiming violations of the First and Fourteenth Amendments. Finding the ASJ chapter had no property right in the monument, time capsule, or land at the center of the park, the district court dismissed the lawsuit for lack of standing. Upon de novo review, Physician Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012), we reach the same conclusion and affirm. In recent years, courts across the country have seen similar challenges involving Confederate statues. Our circuit is not an exception. See, e.g., Monumental Task Comm., Inc. v. Chao, 678 F. App’x 250, 252 (5th Cir. 2017) (mem.). In fact, we have seen a previous challenge involving this very monument. See McMahon v. Fenves, 946 F.3d 266 (5th Cir. 2020) (Clement, J.), cert. denied, 141 S. Ct. 363 (2020). In McMahon, another First Amendment case, this court made clear that “agreeing with speech” and “authoring speech” are distinct. Id. at 272. Accordingly, because the plaintiffs “merely agree[d] with the ideas that they [felt the] monuments express[ed] and sued in hopes of keeping them on display,” we affirmed the district court’s dismissal for lack of standing. Id. We noted that the plaintiffs sought only “to ‘vindicate their own value preferences,’ not to redress a First Amendment injury particular to them.” Id. (quoting Sierra Club v. Morton, 405 U.S. 727, 740 (1972)). Aware of our recent decision, the ASJ chapter attempts to distinguish its case from McMahon by presenting us with reasons it had a right to go upon the land at the center of the San Antonio park. Citing an 1899 document, 1

1The parties dispute the characterization of this document, whether it is an ordinance or City Council’s meeting minutes. Its characterization is immaterial

2 Case: 20-50155 Document: 00515994816