C. HYPOChris MannixOswaldo Mowbrey”

: It’s the hot Summer, 2019, and in a press conference on the statehouse steps in Montgomery, Alabama, two state senators — and say:

We are sick of the activists who hate our brave police officers and our heritage. That is why we are going lead a protest march to protect the statue of one of our most revered heroes, General Sandy Smithers, commander of the Confederate Army’s VII Corps, there in Smithers Circle, which is, as it should be, fed by Selma Boulevard, named for the civil rights march across the Pettus Bridge. We applaud the need for that name change. So please respect our need to protect our heritage as well. This deserves no less protection from government intrusion than a football player taking a knee.”

However, Mayor Marquis Warren IV had ordered the statue’s removal and placement in any museum or private collection that would take it. He noted on K-Bama 103.7 FM radio: “We are celebrating our diversity and turning our backs on a terrible past of rebellion, carnage, and human slavery. Let’s make it clear. The city and Confederate veterans did not erect this statue of Sandy Smithers after the war. It was erected long after, in 1915, to honor a myth of a gallant lost cause. The park at Smithers Circle and the Confederate Battle Flag flying there was not dedicated until 1955, in clear response, per our city archives, to Brown v. Board of Education. The City Council and I are righting a wrong, and not destroying history or heritage any more than pulling down swastikas around Berlin was in 1945….”

Warren does not control the police department.

It had had long been civil rights’ advocates’ position that Smithers, in the battle of Red Rock in 1863, before retreating in the face of Union reinforcements, ordered the bayoneting of 34 black Union POWs, many of them freed slaves and wounded. He then ordered his officers to strike any mention of it in the records. Smithers was later captured by one Major Marquis Warren, Sr. of the 9^th Cavalry, US Colored Troops, who found what purported to be Smithers’ diary aid-de-camp, Jody Domergue, describing how Smithers ordered the corpses to make it appear they were killed in battle. City leaders, educators, etc., ignored the diary until the 1960s. Nevertheless, Smithers went on to get his land, etc., back after Reconstruction, and became Montgomery’s mayor. His supporters cite his decrying the activities of the KKK in his state and donating his own money for a land-grant public university for black students, Gulf Coast A & T (an HBCU). However, he remained a strict segregationist and refused to visit any northern city where “coloreds roamed unsupervised.” The diary now resides in a glass case at the University Alabama Department of History after spending 70 years in Gulf Coast A & T’s library. Mayor Warren says this is irrefutable evidence that Smithers was a racist and a war criminal.

The ACLU decided to back Mannix and Mowbrey. In addition to a peaceful protest walk without any Confederate regalia, they have filed a suit against the city, claiming Warren and the city council are censoring expressive content, i.e., the statue. The day the lawsuit is filed, Beatrix Kiddo finds out that Mannix, who’s also a local charter school head of school as his day job, for expelling her daughter BeBe, who refused to stand to recite the Pledge of Allegiance in protest of Mannix’s stance on Smithers. The school in question is under the legal aegis and regulation of Montgomery public schools, receives state support, but also receives private donations and is run by a private corporation owned by a wealthy mega-church pastor, which runs schools in other states. Its student body is 95% “white/Caucasian.”

Meanwhile, various “Antifa” groups are planning a “Red Rock Massacre Counter March.” K-bama pundit and commentator Sweet Dave, giving his thoughts on the controversy in his other job as a commentator for Alabama Public Radio, supported by NPR and owned by the local University of Alabama Department of Communications, says the Red Rock Massacre never occurred, citing a “well-known counter-historian” who’s called-in both on K-Bama and public radio shows and is an “amateur historian” with his own Youtube channel. This person is a regular on certain other right-wing Youtube vids but doesn’t seem to have any academic background. Sweet Dave also posits that there is evidence that the Domergue Diary was a forgery made by the “libtard faculty appeasing the blacks” at U of Alabama and that the U of Alabama has been supporting the fraud for over 150 years. He presents or cites no facts in support of this. Immediately, Alabama Public Radio fires Sweet Dave, and Sweet Dave counters he’s being censored.

On the way to a meeting with his bosses at K-Bama, 103.7 FM, who now say they will not renew his contract, Sweet Dave rendezvous with the Mannix and Mowbrey and their cadre of armed counter-protesters.

To their horror, though the mayor has erected barriers (to protect construction /removal equipment.), protesters, guarded by folks in black “Antifa” t-shirts, are already graffiti-ing and toppling the statue. A march permit filed indeed okays “protest activity” in the park but not destroying public property. The sole cop on duty pepper sprays some of the crowd then calls for backup. Armed police in riot gear quickly arrive in what looks like an Army surplus tank and start beating the protesters away from the statue with batons.

Concurrently, they arrest a news crew standing on a public street that was shooting footage of the charge…but not before a reporter the Birmingham Daily gets phone video of the chief of police in full military-type regalia and body armor yet inform Mannix, Mobrey, Sweet Dave and their protestors to “hide” in a Big Kahuna Burger so as not to “make their jobs difficult and give these media types an Easter Egg. But be assured all us of hate the n—ger Marquis Warren who’s too big for his britches.” The reporter shouts to the chief that she’s sending the video to her editor and a friend at NBC News. Police seize the phone but not before she hits “send.” While Mowbrey shouts at the chief, “You idiot…do you know what you’ve done?” Mannix and Sweet Dave, apparently seized up at the moment, shout to the crowd: “This is our America! They are desecrating your heritage, just as the South fought for your rights in 1863 at Red Rock. How are you a real men going to handle this?” Mannix and Sweet Dave then produce Confederate flags, another regalia that was otherwise hidden during the march. The crowd, including many armed people, screams in delight, rushes the news crews and the protesters who were spray painting Smither’s statue, beating them with butts of AR 15s and metal rods.

Two young women—one African American and one Latinx U of Alabama students— on their recognize Sweet Dave and shout, “You ought to be ashamed of yourself, you racist!” Sweet Dave shouts pretty nasty profanities at them and says, “all you black and brown types know how to do is loot stores and make babies.” Before either young woman can rush Sweet Dave to punch him, a black police Montgomery officer immediately arrests Sweet Dave for disorderly conduct.

What, if any, First Amendment issues arise in the circumstances above? How would you apply cases, concepts, levels of scrutiny, etc. analyze them?