ACLU correct to defend alt-right's right to protest in Charlottesville

The death of Heather Meyer by car in Charlottesville two weeks ago was a horrible tragedy. We know the driver of the car participated in an alt-right march the night before and the Unite the Right rally in Emancipation Park the day of her death.

The organizers of the rally had to obtain a court order to allow them to stage the rally in their choice of venues. Kessler v. City of Charlottesville, No. 3:17-cv-00056 (W.D. Va. Aug. 11, 2017)

Less well known is the fact the ACLU and The Rutherford Institute represented the organizers in their fight against the city. For doing so the ACLU has been criticized by many. You need only go to its website for the negative comments.

There are those who believe the ACLU erred because alt-right groups preach a message of "intimidation" and are known to engage in "acts of intimidation." Others, taking a position reminiscent of the dispute in Skokie, Illinois, 40 years ago, "draw the line at Nazis and hate speech." The First Amendment should not protect such speakers. Other countries draw this line and they have "robust democracies." Usually the critics promise to redirect their dollars to other organizations.

Personally, I think the ACLU was correct to represent the organizers and the court was right on the law in issuing the order. Before I analyze the case, let me talk about values.

Behind the Free Speech Clause is the idea our democracy will be better and stronger for engaging and hearing divergent views. Some of the views may be morally repugnant-see the alt-right's views on race and religion-but driving them underground will not eradicate them. Racial equality and tolerance can be achieved only if we confront the implications of hateful speech and reject its content in the public arena.

In this engagement we do not want government to be putting its finger on the scale - favoring or disfavoring particular viewpoints. Usually the disfavored viewpoint belongs to a minority group. While the democracy may still be robust in the eyes of the majority, the minority group sees exclusion.

As for violent behavior, it is not protected by the First Amendment, even when it is accompanied by speech. Conversely, the airing of ideas, no matter how loathsome, does not lead to violence. If violence follows or accompanies speech, the police need to intervene and enforce the law. Neither the ACLU nor the First Amendment caused the death of Heather Meyer.

Back to the court case. One of the organizers of the United the Right rally applied for and received a permit on June 13 to stage a demonstration in Emancipation Park to protest its renaming from Lee Park and the removal from the park of a statute honoring Robert E. Lee. The demonstration was to occur on August 12. The organizer estimated 400 persons would attend.

Opposition to the demonstration quickly developed. The city granted permits to several organizations to counter-protest in parks a few blocks away. City council persons and business leaders publicly and repeatedly complained.

The pressure paid off. On Aug. 7 the city revoked the permit for Emancipation Park and in its place granted the organizer a permit for a protest in another park, more than one mile from Emancipation Park. It cited "safety concerns" about the number of people expected to attend the protest but cited no source. It did not respond to the organizers' inquiries about how they could make the demonstration safer. At the same time the city let stand the permits of the counter-protesters.

The court conducted a hearing on Aug. 11. The city advanced an additional "safety concern." The thousands of counter-protesters expected would confront and overwhelm the protesters. Later that day the court ruled in favor of the protesters, restoring their permit to use Emancipation Park.

The ACLU and The Rutherford Institute argued, and the court agreed, the revocation of the permit was based on the content of the protesters' speech. Content-based restrictions on speech "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). This burden the city could not meet.

A restriction may on its face draw distinctions based on the message a speaker conveys. Or a content-based restriction may be inferred from the actions of government "that cannot be justified without reference to the content of the regulated speech."

The circumstances of the revocation hung the city. The action took place at the "eleventh hour." There was no connection between the second park and the purpose of the rally. The protesters and the counter-protesters were similarly situated but disparately treated. The permits of the latter were not modified. The court finally noted the negative comments of the city council members.

Safety was a makeweight justification. The city offered "no evidence" "that many thousands of individuals (were) likely to attend" the rally or that they were likely to engage in violence.

Moving the protesters to a second park would not improve safety. The counter-protesters would just follow the protesters. Some of the protesters would still gravitate to Emancipation Park, stretching the services of the city's emergency responders.

Restricting the speech of the protesters because they would be met by opposition is a classic case of a "heckler's veto," which is not permitted under the First Amendment. Cox v. Louisiana, 379 U.S. 536 (1956). The city needed to show it had a reasonable belief that violence from the protesters was imminent to justify the revocation.

Defending civil liberties is tough work, made more necessary in the divisive times in which we live. We may disagree with the exercise of a particular liberty, but we must not trample on the exercise or condemn those who support the right to exercise the liberty.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm. com.

Published: Mon, Aug 28, 2017