In the last two installments of my primer on First Amendment law, we reviewed the history of government regulations of demonstrations. In Part One, we saw how efforts to shut down civil rights marches enabled the Supreme Court to say, in increasingly emphatic tones, that governments cannot forbid, or even substantially inconvenience, protests because of what they were trying to say. In what should probably have been called Part One-A, we saw that the fact that other people may want to mount counter-protests cannot be used as an excuse for a government to forbid demonstrations, or even to substantially inconvenience them. In Part Two, we saw that the Supreme Court has permitted reasonable regulations as to the time, place and manner of speech, as long as the regulations are content-neutral, are narrowly tailored, and do not restrict speech more than necessary to accommodate important governmental interests.
Part Three: Let’s Get Specific:
The August 12 rally planned by the alt-right can be regulated by the City of Charlottesville as to time, place and manner of speech.
The major issue is shaping up to be the place. I understand that the City has been trying to persuade Jason Kessler to move the rally from Emancipation Park. The argument is that the original permit was issued with the expectation of less than 400 participants, and while Emancipation Park may be a suitable place for a rally of that size, it is not suitable for the “thousands” that are supposedly coming.
Let’s suppose that Kessler is in fact going to have thousands of people coming to his rally, and that the City tells him, “You can still have your rally, but Emancipation Park is just too small for a crowd of ‘thousands.’ If you want to have a rally of thousands, you can do it at the Pavilion, or somewhere else that has room and parking.”
And then let us suppose that Kessler were to go to court to seek an injunction to require the City to allow him to have his rally in Emancipation Park. What legal issues would be involved?
Kessler would argue that to have the rally at the Pavilion instead of in front of the statue that is the subject of the controversy would deprive his message of its force.
Recall the case of City of LaDue v. Gilleo, 512 U.S. 43 (1994), where the Supreme Court made clear that sometimes, the place of the speech is an important part of the message — “[d]isplaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else…,” so saying that Ms. Gilleo could just put up her sign somewhere else was not a sufficient substitute. Surely Kessler’s argument that he has a right to protest the removal of the Lee statue in front of the Lee statue has merit.
However, it is not conclusive. The argument that the “place” of the speech is an important part of the message does not overcome legitimate government interests; in Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), the Community for Creative Non-Violence wanted to erect a tent city on the Washington Mall, in the shadow of the White House and on the where, 50 years earlier, the shanty town known as Hooverville had been erected. The CCNV was protesting the denial of food and shelter to the homeless. The Park Service said, “You’re OK to have a Thanksgiving dinner, but no sleeping overnight on the Mall.” The Supreme Court upheld that ban, because the federal government has a valid interest in enforcing its regulations on the use of the Mall. (Justice White also didn’t think much of the argument that sleeping was a form of speech, but I digress.)
In a case that did not go to the Supreme Court, Boston decided to accommodate protesters at the 2004 Democratic National Convention by creating a anomalously named “free speech zone” — a chain-link fence-enclosed area near the site of the Convention — where protesters could do all the protesting they wanted, but they couldn’t actually interact with convention delegates. Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8 (1st Cir. 2004). The District Court accepted Boston’s claims that the protests might present a danger of violence, because other protests earlier in the year had resulted in violent confrontations with police. Based on that perceived danger, the courts upheld this “free speech” cage.
Other cases involving “free speech zones” without a reasonable and specific fear of violence have generally struck down such attempts to regulate speech. In Bible Believers v. Wayne County, Michigan, 805 F.3d 228 (6th Cir. 2015), some fundamentalist Christians wanted to be free to roam around the streets of the Arab International Festival in Dearborn, preaching their message that Mohammed was a false prophet. The authorities wanted them to be able to do so only in a designated free speech zone, and the Sixth Circuit struck down that restriction. The Court noted that the problem that the City of Dearborn was having with the Bible Believers was that the large Arab population in Dearborn was offended by their message, and could have become violent. But to honor this reaction, and to make it the reason for restriction of speech, amounted to a “heckler’s veto,” which we cannot permit.
In sum, the cases that have allowed restrictions on where a demonstration may take place have been based on the following reasons:
1. The activity being proposed is counter to some other governmental interest (like camping on the National Mall).
2. There is some reasonable and particular basis for concern about the possibility that the demonstrators will be violent, or will otherwise disrupt public order.
Many of the cases mention a third basis for restricting where a demonstration may take place — that there is a particular reason based on the specific attributes of this demonstration that makes this particular location inappropriate for this activity — but I have not seen any cases that have been decided on that ground.
The concern about violence needs to be more than saying, “They’re radicals, and they’re not our kind of people, and who knows what they will do,” but the concern doesn’t have to be based on specific statements by these particular demonstrators that they intend violence.
In the Boston Convention case, Boston officials sought to introduce evidence that other protests earlier in the year had turned violent; the protesters objected, saying that it was unfair to them to paint them with the same brush. They wanted the judge to exclude all such evidence. The judge did not exclude the evidence, and the First Circuit held that if the District Court wanted to consider such evidence, it was not error to have done so:
We do not believe a per se rule barring the government from using past experience to plan for future events is consistent with the approach adopted in the Court’s time-place-manner jurisprudence. … The question is not whether the government may make use of past experience — it most assuredly can — but the degree to which inferences drawn from past experience are plausible. While a government agency charged with public safety responsibilities ought not turn a blind eye to past experience, it likewise ought not impose harsh burdens on the basis of isolated past events. And in striking this balance, trial courts should remember that heavier burdens on speech must, in general, be justified by more cogent evidentiary predicates.
Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 13-14 (1st Cir. 2004). There are many cases involving the Ku Klux Klan where the courts have taken notice that other Klan rallies had turned violent; a court considering an injunction may consider evidence that tends to show a risk of violence, even if that evidence does not rise to proof beyond a reasonable doubt.
So let’s assume that a judge finds that the alt-right people are likely to lash out and fight anyone who might be watching — such as perfectly peaceful observers from the Charlottesville Clergy Collective. Is that an argument to move the rally to some other place, or is it a reason to cancel it all together? If they are going to be violent, is it better for anyone if they are violent in the Pavilion instead of in the Park?
Could we make the alt-right folks go to McIntire Park, or some place where they couldn’t really do much harm, and where there wouldn’t be a lot of counter-protesters? Not really. The cases make clear that the right to speak includes the right to be heard, including the right to make yourself heard by people who may find your message repugnant. A policy that required them to have their demonstration in a place where no one could see or hear them could not be upheld.
How about the argument that the City should say, “Not in Emancipation Park, but in the Pavilion instead” because they might have a larger crowd than Emancipation Park can reasonably accommodate, and that the overflow would block East Market Street, which is a major thoroughfare? A reasonable counter-argument would be to cite the food festivals that have been held in Emancipation Park, and to note the large crowds and the fact that police officers have had to direct traffic on East Market Street for those festivals, with minimal real disruption.
Apparently both Jason Kessler and some downtown businesses are getting First Amendment lawyers prepared for litigation. Stay tuned…