State and city lawyers are seeking to dismiss a lawsuit that claims moving the statue infringes on free speech.

Norfolk, Virginia, in the United States, can relocate a Confederate monument despite a state law barring the removal of war memorials, the city’s top prosecutor and the state’s attorney general argue in a lawsuit.

The two filed a motion Tuesday seeking to dismiss a city lawsuit filed against them that says the state law infringes on its right to free speech. Norfolk Commonwealth’s Attorney Greg Underwood and Attorney General Mark Herring said in court documents that they don’t believe the law applies to the 25-metre (980-foot) monument in Norfolk’s downtown and that they would not try to enforce it.

All parties “agree that the city may remove the Monument”, said the motion, which also notes that Underwood and Herring support its removal.

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The filing marks the latest development in a series of legal fights and other efforts around the state to remove or relocate memorials to Confederate leaders or other symbols of the old South. The long-running debate gained new momentum after a white nationalist rally in Charlottesville two years ago descended into violence and a car attack left a woman dead.

Potential for lawsuits

What happens next with Norfolk’s monument, which includes a statue of a Confederate soldier nicknamed “Johnny Reb” as well as the seal of the former Confederacy, was not immediately clear Wednesday.

City lawyer Adam Melita said his office was reviewing the filings and “we really do not have any comment for the public at this time.”

University of Virginia law professor Richard Schragger, whose work includes a focus on the intersection of constitutional law and local government law, said he did not think it was entirely clear that the city could proceed with removing the monument.

The state law at issue has a provision allowing private parties to enforce it, meaning removing the monument could open the city up to lawsuits by outside groups, Schragger said.

The 1904 law that makes it unlawful to “disturb or interfere with” memorials for war veterans initially applied only to counties but was expanded to include all localities in 1997. In 2017, Herring issued an opinion that said the law didn’t apply retroactively to statues erected before the law’s expansion.

The Norfolk monument, which the City Council voted to move to a cemetery, went up in 1907.

‘Who has the final say?’

Charles “Buddy” Weber, a Charlottesville lawyer who is among the plaintiffs in a lawsuit against that city over its plans to remove two Confederate monuments, noted a judge in that case ruled differently on the retroactivity issue.

“The question is, who has the final say on that? And it’s not the attorney general,” said Weber, who added that he thinks the issue eventually will be settled by the Supreme Court of Virginia or state legislators who could decide to amend the statute.

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Previous attempts by Democrats in the Republican-led General Assembly to do so have been unsuccessful.

In the Charlottesville case, the city has signalled that it will appeal to the state Supreme Court once a circuit court judge delivers his ruling on the final outstanding issue, attorneys’ fees.

Virginia has more Confederate monuments on public property than any other state except Georgia, according to a survey by the Southern Poverty Law Center. But the debate over the symbols has also unfolded across the country. Some see the monuments as historical artefacts that should remain untouched while others say they glorify the South’s racist past.