After the noise and mess and 23 arrests on July 8 for the KKK rally — 40 KKK members, at least 1,000 community members yelling at them, with something like 200 police officers deployed — Charlottesville is bracing for a “Unite the Right” rally being planned by Jason Kessler and his friends. His advertising proclaims that various alt-right national figures like Richard Spencer are coming. Kessler has been granted a permit to hold his “Unite the Right” rally in Emancipation Park (formerly Lee Park) on August 12, from 12 noon to 5 PM. Can the City revoke the permit, as we learn more about who is coming?
Many in the community want the City to withdraw the permit necessary for them to take over Emancipation Park for the day. There are many legal reasons that the City might scrutinize the permit application very closely, but we need to steer clear of the illegal reasons that have been suggested. Let’s look at what the City can or cannot do.
- The City can regulate or deny a permit application for reasons of safety, but not because of the content of what the alt-right people are going to say. Any regulations must be content-neutral.
- The City can impose conditions and restrictions on marches and demonstrations only if the conditions and restrictions are reasonably tailored to specific needs and problems, and only if the conditions and restrictions do not have the effect of being an undue burden on public speech.
- The City cannot pass on the costs of security to the permit applicants, at least where the security costs are incurred to protect against the angry responses of others.
Content Neutrality:
There are a few points that need to be made here:
- Hate speech is still protected under the First Amendment.
- Unpopular speech is protected under the First Amendment.
- Government cannot regulate or restrict protected speech.
- There is no such thing as a list of domestic terrorist organizations whose members can be denied the civil rights given to the rest of us.
There is a list of foreign terrorist organizations maintained by the FBI (groups like ISIS), and it is a violation of federal law (18 U.S.C. §2339A, for example) to give them any significant help. There is no such list for domestic groups like the KKK.
What this all means is that the KKK and the alt-right have just as much right to get a permit to march or to hold a rally as does the NAACP.
It is important to remember that most of the decisions of the courts dealing with attempts by local governments to restrict marches and demonstrations were fleshed out during the civil rights era, as places like Birmingham, Alabama, tried to ban marches of the Southern Christian Leadership Conference or the NAACP. So for liberals to be complaining that our free speech doctrines don’t allow us to ban the Klan would be hypocritical.
No Undue Burdens:
If the march or demonstration will impose costs on the City — administrative costs, primarily — the City can require compensation for the costs. This means something minor — $200, say, for the cost of the permitting process. But the City cannot require compensation for police officer overtime, or for costs associated with counter-protesters.
The City has a standard operating policy governing special events like marches and demonstrations, and that policy includes a requirement that the person or persons putting on the event obtain general liability and property damage insurance, in the amount of at least $1 million. Looking at the caselaw on this, this SOP is probably unenforceable:
“The Supreme Court has articulated four criteria that permissible time, place, and manner restrictions must satisfy: (1) they must be justified without reference to the content of the regulated speech; (2) they must be narrowly tailored to serve a significant governmental interest; (3) they must leave open ample alternative channels for communication of the information; and (4) they must not delegate overly broad licensing discretion to a government official. … a valid restriction must satisfy all four criteria.
“… UDOT’s liability insurance and indemnification requirements are content-neutral, even though the court notes a number of concerns about whether the regulations are genuinely content-neutral in practice. But the court finds that UDOT cannot enforce either requirement as currently written because both provisions suppress more speech than is permissible under the narrowly tailored test. Completing the required analysis, the court finds that UDOT’s policies leave open ample alternatives for communication and do not delegate overly broad licensing discretion to government officials.”
iMatter Utah v. Njord, 980 F. Supp. 2d 1356, 1368 (D. Utah 2013).
Security is Still Important:
The City has an absolute right to insist — as their standard operating procedures do — that the people putting the rally together arrange for adequate security. “Adequate” is a judgment call. It provides the City with the power to say to the alt-right, “If your idea of security is a motorcycle gang like the Warlocks, with guns, that isn’t enough.” And no court in the country would overturn that assessment.
The Permit Could Be Revoked for Dishonesty:
The permit application predicts 400 people will be there; on line, the organizers are calling for “thousands” — which necessarily suggests more than 1,000. The application says that they will not use amplified music; some of their on-line postings talk about bands and music.
The Permit Could Be Revoked if a Breach of the Peace Seems Likely:
Some of the on-line postings seek people to come, “ready to fight.” Solidarity Cville got a hold of copies of text messages with one of the organizers, and they paint a picture of a group that is looking forward to a fight. http://solidaritycville.com/2017/07/17/Solidarity-Cville-documents-threats-of-violence-planned-for-August-12/One of the organizers of the August 12 event has posted on Facebook:
“I can assure you there will be beatings [at] the August event. Gloves are off if they attack.”
“We have reinforcements coming. They’re bussing in people by the hundreds. That day we finish them off.”
“If the war started today it would be over by November. Why fight in the cold, let’s get it done now.”
“We’re luring in BLM, SURJ, and Antifa from Baltimore, Philly, and D.C. We’ll kill 5 birds with one stone.”
“Here we go folks. This is official! We need your help. We will be facing off directly with Antifa, and Black Lives Matter. All able bodied men and women ready to fight!”
Another source is a neo-Nazi online forum, the Daily Stormer. (I am not putting in links, because I don’t want to be linked to them in any way.) The Daily Stormer refers to a character known as “Based Stickman,” a nom de guerre for Kyle Chapman, a nationally known alt-righter who keeps getting arrested for violence at rallies. The Daily Stormer notes that “Based Stickman is going and as much as I like to watch him bash antifas heads in him and his group are pretty prone to starting shit.”
One Daily Stormer commenter wrote on their page, “They need Sacco Vandal at Unite the Right. Antifa and niggers will be out in force. We need military guys there to crack skulls.”
I could go on, but you get the picture. If the City were to say, “Based on these statements, we reasonably fear violence from the people to whom the permit is given.” And that could be a basis to revoke.
Conclusion:
If the City wants to revoke the permit based on content-neutral reasons, those reasons are out there. At the very least, Charlottesville should be driving a hard bargain on security for this demonstration.
