Today (August 8, 2017) the ACLU and the Rutherford Institute sent Charlottesville a letter demanding that the City withdraw its August 7, 2017 letter that modified Jason Kessler’s demonstration permit to permit the demonstration only in McIntire Park. The City decision is explained in the statements of City Manager Maurice Jones, Police Chief Al Thomas, and Mayor Mike Signer.
The guts of the City’s position is that “the size and nature of the demonstration have evolved considerably since the time of Mr. Kessler’s application.” The permit application was for 400 people, but Kessler himself has bragged that “thousands” of alt-righters are coming. Maurice Jones’ statement went on:
There is no doubt that Mr. Kessler has a First Amendment right to hold a demonstration and to express his views. Nor is there any doubt that we, as a City, have an obligation to protect those rights, the people who seek to exercise them, and the broader community in which they do. We have determined that we cannot do all of these things effectively if the demonstration is held in Emancipation Park.
The City has serious concerns about ensuring the safety of the expected demonstrators in Emancipation Park, expected counter-demonstrators and the public, and to protect against public and private property damage, among other concerns.
The ACLU/Rutherford letter makes 5 arguments, some of which are not in dispute.
I. Opposition can be no basis for government action that would suppress the First Amendment rights of demonstrators, no matter how distasteful those views may be.
The City doesn’t disagree — in fact, it leads off by acknowledging that principle.
II. Last-minute relocation undermines ability of demonstrators to effectively communicate their message.
This is almost a valid point — the last-minute relocation sows confusion for everyone concerned, though it is not clear to me how the last-minute relocation undermines the ability of the alt-right to effectively communicate their message. They offer no real argument that it does.
III. City must provide factual evidence to support its attendance estimate and justify revoking the permit to demonstrate in Emancipation Park.
There are two arguments in this section. First, the letter argues that the City either “must” or “should” provide evidence now — not in court, but now — to back up its claim that Kessler’s attendance estimates are off. The letter is threatening legal action, not making a public relations or political point, and though the City will have to provide evidence if their decision is challenged in court, the City is not legally required to provide evidence when it sends out the letter.
Second, and here the lawyer in me rises up, the letter argues that the City must prove “that a compelling government interest underlies its decision,” and it seems to cite two cases in support of this proposition (though the sentence is admittedly poorly written, and maybe they are citing the cases for a different proposition). The cases don’t actually say that.
Here is the essence of the problem — if a government is going to discriminate on the basis of the viewpoint of the speaker, it must have a compelling government interest in doing so. But if a government is not discriminating based on the content of the speech,
Reasonable restrictions as to the time, place, and manner of speech in public fora are permissible, provided that those restrictions “are justified without reference to the content of the regulated speech, … are narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)).
The courts have referred to this as “intermediate scrutiny,” not requiring proof of a compelling government interest. That might seem like a technicality, but it is actually at the heart of the issue. Historically, telling a government that it has to establish a compelling government interest is the same thing as telling a government that “you lose.” With an intermediate test, a government can prevail.
The ACLU/Rutherford letter cites Christian Knights of KKK v. District of Columbia, 972 F.2d 365 (D.C. Cir. 1992), where the KKK wanted to march for 11 blocks of the National Mall, and the D.C. government wanted to approve only 4 blocks. The case turned on the assessment by the D.C. Police that they were not confident that they could control the expected violence, and by the Park Police that they did think that they could control the expected violence.
Judge Oberdorfer found that the threat of violence was real and substantial, 751 F.Supp. at 222. No party to the proceedings below seriously contended that some sort of violent response was unlikely. The focus of the dispute was the police’s ability to control the violence. On that subject there was conflict not only between the testimony put on by the District and that put on by the Klan, but also between an MPD officer and senior officers of the Park Police. The trial judge recognized that he should accord some deference to the expert opinions of law enforcement professionals, but found himself facing a clash of experts. He determined that equal deference was due the officers of each department, and that “the differences between them must be resolved based upon the normal judicial criteria of demeanor, credibility, and consistency.” Id. at 221. Based on the testimony of the various officers, evaluated thus, Judge Oberdorfer found that the threat of violence was not beyond reasonable control.
972 F.2d at 375. The D. C. Circuit held that because the judge found that the police could control the situation, the restriction on the length of the march was not necessary.
The crucial question, then, becomes a matter of expert opinion — can the Charlottesville police control the violence that they expect if the Unite-the-Right rally takes place in Emancipation Park? Chief Thomas’s rationale was:
Having the demonstration at McIntire Park is safer because the park is large enough to accommodate the size of the anticipated crowd. It also avoids a situation whereby overflow crowds spill into the streets, as would likely occur at Emancipation Park. Law enforcement also will have the room needed to maneuver and direct crowds toward safety in case of a disturbance. Additionally, we can more effectively stage other public safety resources that would allow for immediate response if needed.
Assuming that an emergency hearing is going to be held, this is going to be the basis on which a judge will decide whether the permit can be limited to McIntire Park.
IV. If the City is justifying its relocation of the rally elsewhere based on the presence of counterdemonstrators, that constitutes an unconstitutional “heckler’s veto”
This is a slightly misleading presentation of the concept of a heckler’s veto. I am not aware of any court that has held that it is the presence of counterdemonstrators that constitutes a “heckler’s veto.” A heckler’s veto occurs specifically when a government is so afraid of the adverse reaction of counterdemonstrators that it restricts the demonstration. So let’s assume that they meant that if the City is justifying its relocation on the reaction of the counterdemonstrators.
I don’t read the statements of the City officials as basing the move on the fear of the reaction of the counterdemonstrators. Only in Maurice Jones’ statement is there a mention of counter-demonstrators:
The City has serious concerns about ensuring the safety of the expected demonstrators in Emancipation Park, expected counter-demonstrators and the public, and to protect against public and private property damage, among other concerns. We believe that the proposal to move the demonstration to McIntire Park strikes an appropriate balance between Mr. Kessler’s right to organize a demonstration, on the one hand, and the City’s obligations to maintain public safety and protect public and private property, on the other.
Finally, I would remind everyone who plans to participate in these demonstrations or counter-demonstrations that you have a right to do so peacefully. You have no right to incite violence or to compromise public safety.
(Emphasis added.) But the City does not have to ignore the possibility of a response from counter-demonstrators. In the Christian Knights of KKK case referred to above, the D. C. Circuit held that a threat of violence may be a permissible ground for a time, place and manner limitation. 972 F.2d at 374. It all gets back to the questions on which a time, place and manner limitation turn:
- Is the City truly acting because of a reasonable fear of violence, at least in part from the alt-right?
- Is the limitation “narrowly tailored” to meet the City’s legitimate public interest?
- Does Jason Kessler have another adequate opportunity to have his rally?
If the answer to these questions is “yes,” the City wins.
V. The City must act in accordance with the law, no matter how distasteful that may be to members of the community
No argument with this general principle. The ACLU/Rutherford letter goes on to make a legitimate public relations point:
At the very least, the City must explain in more than just generalities its reasons for concluding that the demonstration cannot safely be held in Emancipation Park. It must allow the organizers the opportunity to dispel fears or concerns about the rally.
This frames the crucial credibility question — how credible would an assurance by Jason Kessler be at this point that his crowd will only be 400 peace-loving conservatives?
Solidarity Charlottesville has culled statements from social media posts of the alt-right organizers; here are a few representative examples:
- “The goal is to get a thousand men. They want to crush and demoralize antifa [a term used by white nationalists to refer to all racial justice activists] to the point where they don’t return to the park.”
- “I wanted to take down antifa and then nail Richard Spencer.”
- “[Corey Stewart] knows who to talk to to get rid of [Wes] Bellamy… The point of all this is to lure him to the park and get him to do something stupid so we can get him removed.”
- “I’d love to turn flank and beat the piss out of [Spencer] after we finish with antifa.”
- “I can assure you there will be beatings at the August event.”
- “That day we finish them all off.”
- “We’ll kill five birds with one stone.”
- A call for “All able bodied men and women ready to fight.”
- “I say take them out altogether.”
- “You have the opportunity to advertise a time and place; you show up with guns and let those degenerates come try to kill you. You literally have the chance to take out our enemies. Not just metaphorically or through rhetoric, but through legal acts of self defense.”
- “Just say when go time is and we’ll walk in there with a thousand men and crush these little c$%^ rags for good.” [This statement was “liked” by Jason Kessler.]
There are also websites and social media posts that call for this rally to be “another Berkeley.” This past spring, Berkeley, California, was the site of fights in the streets around demonstrations over the cancellation of speeches by conservative speakers Ann Coulter and Milo Yiannopoulos; this sounds a lot like a call for street fighting in Charlottesville.
I am sure that there are other examples available.
Assuming that the ACLU/Rutherford/Kessler folks file for an injunction, the City will present these and other examples, and will surely present testimony from Chief Thomas and other law enforcement experts about how the confined downtown space of Emancipation Park, right next to the major thoroughfare of Market Street, is not a suitable place to control a situation that might degenerate based on these kinds of sentiments.
If a federal suit is filed Wednesday afternoon, United States District Court Judge Glen Conrad will be in Charlottesville on other business on Thursday and Friday. Just sayin’.
