CHARLOTTESVILLE — The limits of constitutionally protected speech and freedom of assembly are being put to the test in Charlottesville.
In less than two weeks, members of the National Socialist Movement, the pro-secessionist League of the South and hundreds of their allies in the Nationalist Front and “alt-right” movement will gather in Emancipation Park for the Unite the Right rally.
Arranged by self-described “pro-white” activist Jason Kessler, the rally is expected to also draw hundreds of confrontational counter-protesters who will be able to gather at McGuffey and Justice parks, per event permits recently secured by University of Virginia professor Walt Heinecke.
While the stage for Aug. 12 is nearly set, with massive demonstrations and protesters expected, questions regarding the enforcement of law and order remain.
City officials said they have been working with Kessler to relocate the rally elsewhere, because of the number of people the event is expected to draw to the downtown area. Kessler, however, does not want to change venues, according to authorities.
The director of the Thomas Jefferson Center for the Protection of Free Expression says the city is allowed to move the event in order to maintain public safety and prevent disruption to traffic and business downtown.
“They should be able to relocate it to a more suitable location,” said the center’s director, Clay Hansen. “As long as it’s for legitimate reasons and they don’t try to minimize or hide the rally in some far-off corner.”
An attorney supporting Kessler says the city is prohibited from doing so.
“It would be ridiculously unconstitutional for the city to try to move the event elsewhere on that basis,” said Kyle Bristow, an attorney and director of the Michigan-based Foundation for the Marketplace of Ideas, a self-described nonpartisan civil liberties nonprofit.
The group’s board of directors includes Mike Enoch, a white nationalist commentator and podcaster. Enoch will be one of the featured speakers at the Unite the Right rally.
In an email last week, Bristow said his recently founded “legal network” is “quickly becoming the legal muscle behind the alt-right movement.”
The alt-right is a far-right movement that combines elements of racism, white nationalism and populism while rejecting mainstream conservatism and multiculturalism.
Earlier this year, according to Bristow, his organization helped coordinate the legal case that led to an Alabama court requiring the University of Auburn to let white nationalist Richard Spencer speak on campus. Auburn settled the case earlier this year with a $29,000 payout to cover the legal fees of the student who filed the suit, according to the university’s student-run newspaper, The Auburn Plainsman.
In recent weeks, business owners, activists and others have commented on the possibility of violence at the rally, sometimes comparing it to the melees between self-styled anti-fascist protesters and alt-right ideologues at protests in Berkley, California, earlier this year.
In a letter to city officials last week, Bristow said law enforcement officials could potentially deprive the right-wing activists of their constitutional rights if authorities do not prevent “leftist thugs” from attacking the rally.
“If the Charlottesville Police Department stands down on Aug. 12, it would not be farfetched to postulate that the alt-right rally participants will stand up for their rights by effectuating citizen’s arrests or by engaging in acts of self-defense,” Bristow said. “It would be imprudent, reckless, unconstitutional and actionable for the Charlottesville Police Department to not maintain order.”
Bristow alleged in his letter that Kessler recently was told that law enforcement officials would not have to intervene should left-wing protesters attack the rally attendees. A police spokesman refuted that claim Friday, saying that the department officials met with Kessler and “a representative of his security staff” earlier this month and discussed “several security concerns.”
“At no time was Mr. Kessler informed officers would not take action against those that attempted or committed violence towards another,” said Lt. Steve Upman.
Kessler did not reply to calls and messages last week.
Some suspect that the possible violence could be the result of intentional right-wing agitation, as local activists with Solidarity Cville have recently exposed posts on social media and far-right blogs in which supporters of Unite the Right rally seemed to revel in the possibility of violence and call on others to prepare for a fight.
Denounced by both parties
Republicans and Democrats alike have cast the hardcore conservatives and populists associated with the alt-right movement as racist for its provocative leaders’ explicit anti-Semitism and unabashed calls for a white-ethno state.
While their beliefs and activism have turned off many, the rally’s primary goal of protesting the city’s effort to remove a statue of Confederate Gen. Robert E. Lee has caused some Southern heritage supporters and political moderates to become sympathetic to Kessler’s cause.
But the slow revelation that the event’s extreme far-right elements will be met by liberals, leftists and anti-racists has scared others away.
According to Albemarle County spokeswoman Lee Catlin, the organizers of the Patriot Movement’s planned “1Team1Fight” event in Darden Towe Park, which was being relocated from Greenville, South Carolina, have called it off.
Catlin said the organizers reportedly canceled their event because of “unknown variables with the opposition.”
Earlier in the week, an organizer for the event, who goes by the name Chevy Love on Facebook, said the event was not affiliated with the Unite the Right rally, saying that she did not want to associate with any of the “hate groups” expected to attend, listing both left- and right-wing activist groups.
Earlier in the week, before the organizers canceled the event in Darden Towe Park, the National Socialist Movement announced that members will be in attendance at the Unite the Right rally to “defend Free Speech and our Heritage at the Lee Monument.”
In an interview, Butch Urban, the movement’s chief of staff, said the organization had been planning to attend the event after it was arranged by Kessler earlier this summer.
The event also will draw leaders and followers of other groups in the Nationalist Front, an alliance of groups such as the Traditionalist Worker Party and The League of the South — all of which are united in working toward the creation of an “ethno-state for white people.”
Although National Socialism is typically cited as the definition of Nazi ideology, Urban said his organization is not a neo-Nazi group.
“That’s what everybody takes it to be. That’s not what it is,” Urban said. “National Socialism is about your country and your people come first. You don’t support wars around the world and giving billions of dollars to other countries.”
As for the calls for a white-ethno state, Urban said multiculturalism has only been “pushed down everyone’s throat” in the last 30 to 40 years. “That’s not what everyone wants,” he said.
“Take a look at Chicago, there’s a prime example of multiculturalism,” he added, citing the city’s reputation of having high murder and unemployment rates.
U.S. courts have grappled with the First Amendment questions involving Nazi demonstrations and displays. Many of those cases have determined that Nazi and white supremacist rhetoric is constitutionally protected.
And while many object to those ideals, authorities cannot justify restricting speech despite the threat of violence and public disorder — a principle known as the “Heckler’s veto.” Both Bristow and local attorney Lloyd Snook recently mentioned the doctrine in comments about the upcoming rally.
“In First Amendment theory, it is fundamental that a government cannot regulate speech based on its content, including on the fact that some people may be hostile to it,” Snook wrote on his law firm’s website.
About two weeks after a North Carolina chapter of the Ku Klux Klan held a rally in Justice Park to protest the planned removal of the Lee statue, Snook wrote that there has been a “disturbing complaint” about law enforcement being “hand in hand” with the Klan and white nationalists.
“In fact, the city police department is required to preserve order to allow the demonstration to go forward,” Snook said. “This is not a matter of choice, but of constitutional law.”
Snook cited the 1992 Supreme Court decision that invalidated an ordinance in Forsyth County, Georgia, that required fees for any parade, assembly or demonstration on public property. According to Snook, Forsyth County passed the ordinance after a violent civil rights demonstration in 1987 cost the county over $670,000.
Two years later, when the Nationalist Movement had to pay fees to hold a protest against the federal Martin Luther King Jr. holiday, the group sued the county.
In a 5-4 opinion, the Supreme Court decided that the county’s ordinance violated the First Amendment.
In recent weeks, some opposed to the Unite the Right rally have called on the city to ensure Kessler pays the fees and obtains liability insurance of no less than $1 million that the city requires for “special events.”
In an email last week, city spokeswoman Miriam Dickler clarified that the city makes distinctions between “demonstrations” and “special events,” and that the two are “not interchangeable under the city’s regulations.”
“The differences are attributable to United States Supreme Court decisions involving the First Amendment,” Dickler said.
According to the city’s Standard Operating Procedure for special events, a demonstration is defined as a “non-commercial expression protected by the First Amendment of the United States Constitution (such as picketing, political marches, speechmaking, vigils, walks, etc.) conducted on public property, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers.”
Regardless, she said, Kessler has voluntarily provided a certificate of insurance.
1977 Skokie decision
Looking at another Supreme Court case, Hansen, of the local Thomas Jefferson Center for the Protection of Free Expression, said the court’s 1977 decision in the National Socialist Party of America v. Village of Skokie case “feels closest to what we’re dealing with here in the city.”
The case centered on a planned National Socialist demonstration in Skokie, Illinois, which at the time had a large population of Jewish residents who survived detention in Nazi concentration camps or were related to Holocaust survivors.
Fearing violence would be directed at the demonstrators who were planning to dress in Nazi-era uniforms with swastika armbands, a local court prohibited the event, an action that the U.S. Supreme Court later found to be unconstitutional in a 5-4 opinion.
“In particular, the litigation in that didn’t have to do with the march and the gathering itself — it was more about symbols,” Hansen said. The Supreme Court had to decide whether Nazi imagery could constitute “fighting words,” a legal distinction that prohibits some forms of speech that are likely to incite violence.
The court found that those symbols do not pass that threshold, which has in recent years “largely fallen out of favor as doctrinal tool,” Hansen said. Instead, the doctrine in recent years has morphed into a new rationale that’s based on allowing authorities to stop speech that could lead to “imminent lawless action,” he said. “It’s useful if something goes wrong.”
While the city could theoretically stop the Unite the Right rally as it’s happening, according to Hansen, it’s not a decision to take lightly.
“It’s a high hurdle” to legally justify stopping a demonstration, Hansen said.
“The city has an obligation to handle any crowds that are on site as a result of a lawful and protected speech activity,” he said. “In a public park, and given the proper permit … police are obliged to make sure that the event goes unimpeded.”
Concerned that people protesting the Unite the Right could be arrested for participating in an unlawful assembly, Heinecke earlier this month applied to hold demonstrations at McGuffey Park and Justice Park.
At the Klan rally earlier this month, 22 people were arrested on various charges. About half of the arrests occurred after the rally had ended and authorities declared that the hundred or so people still on the street were illegally gathered. Authorities used tear gas to disperse the crowd.
“The best way to avoid that is to have some free-assembly zones at the parks,” Heinecke said. He said the permits will allow the protesters to gather from 9 a.m. to 7 p.m. Aug. 12. The Unite the Right rally is scheduled for noon to 5 p.m.
Heinecke said there will be programming at the two parks. He declined to say which activist groups and organizations he’s collaborating with to contend with Kessler’s rally.
He said Charlottesville in particular has “unfinished business” in regard to racial justice.
“I think the city will be the epicenter of a conversation about racial justice in a new era we’re going toward with changing racial demographics,” he said.
Asked about the alt-right activists’ concern that the nation’s changing demographics are tantamount to a displacement of white people, Heinecke said it saddens him that they are so fearful.
“I think they’re operating out of fear rather than seeing an opportunity to create a diverse and equal society,” he said. “That’s a sad thing when there’s an opportunity to think about what the United States of America really means.”