THE ACLU AND THE LIMITS OF FREE SPEECH

WHEN RALLY PERMITS END UP IN COURT

Walt Heinecke didn’t like what he saw at the KKK rally on July 8. It wasn’t just the hooded men
with their misspelled signs proclaiming the supposed superiority of the white race. The UVA
education professor and longtime human rights activist didn’t like the fact that police declared an
unlawful assembly against post-rally counterprotesters and then teargassed them. So, as he thought
about Jason Kessler’s upcoming Unite the Right rally, Heinecke hatched an idea. He would file
paperwork to reserve two small downtown parks so that people challenging the alt-right would
have a pair of peaceful oases to avoid street violence and aggressive police tactics.
“I wanted to have a place for protesters to come and have a lawful assembly,” Heinecke told a
local television station, “so that they wouldn’t get caught up in pepper spray or tear gas.”
Heinecke paid his application fees, the city awarded him the permits to reserve the two parks,
and all seemed in order—until five days before the rally, when the city revoked Kessler’s permit
to Emancipation Park, formerly known as Lee Park. Kessler sued the city. Suddenly, Heinecke’s
park permits were Kessler’s top piece of evidence.

FRIDAY-NIGHT CITES

The federal court that serves the Western District of Virginia doesn’t typically offer hearings just
a day after a case is filed, but Kessler v. Charlottesville was no ordinary case. On Friday, August
11, less than twenty-four hours before Unite the Right was scheduled to begin, the third floor of
the federal court building at the corner of Main Street and Ridge-McIntire Road was bustling with
First Amendment arguments.
“This is a clear case of content-based discrimination,” declared Victor M. Glasberg, an ACLU-
affiliated attorney arguing in favor of Kessler’s request for an emergency injunction. “There is
clear favoritism being demonstrated by a locality that had expressed opposition to the plaintiff’s
position.”
Glasberg pointed out that the city let Heinecke’s permits stand while his client’s permission to
rally downtown was revoked. Also, he noted that city leaders had tried to push people away from
Unite the Right not only by assisting groups in creating alternative events but also by repeatedly
slamming Kessler’s messages. Mayor Mike Signer had called the event “racist and bigoted,” and
Vice Mayor Wes Bellamy used Twitter to urge people to “#resist” it. This was evidence, Glasberg
said, of taking sides when the First Amendment tells government to avoid favoritism in speech
issues.
Kessler’s team also noted that when Signer held his “capital of the resistance” rally back in
January—the event featuring Democratic National Convention speaker Khizr Khan—Signer
neither sought nor obtained a permit.
On the other side, Craig Brown, the Charlottesville city attorney, argued that there were solid,
practical reasons why the rally should move to McIntire Park. McIntire’s 130 acres are 129 more
than Emancipation’s single acre, and McIntire has on-site parking, room for portable toilets, and
room for police to keep angry people apart. Brown explained the seemingly late timing of the
location switch by noting that the police chief had seen social media estimates of the number of
expected ralliers spike from the original estimate of four hundred to more than one thousand. Little
Emancipation Park, Brown said, would simply be overwhelmed.
“This is an issue of public safety and whether a small park in a dense urban setting is appropriate
for a rally of this size,” Brown argued.
Glasberg insisted that holding a rally to save the statue of Robert E. Lee anywhere other than
the location of the statue itself would muddy the meaning, and he called McIntire Park “a
demonstrably inferior location.” (He even used the term “back of the bus” to describe it—an irony,
perhaps, given McIntire Park’s past as a whites-only recreation space.)
However, the city noted that the planned rally was being advertised on Unite the Right’s own
Facebook page as having little to no explicit connection to the statue: “This is an event which seeks
to unify the right-wing against a totalitarian Communist crackdown, to speak out against
displacement level immigration policies in the United States and Europe and to affirm the right of
Southerners and white people to organize for their interests just like any other group is able to do,
free of persecution.”
As recently as August 7, the same day he was told to move the rally, Kessler posted a video to
Twitter saying that the rally was “about white genocide” and “about the replacement of our
people.”
Another lawyer arguing for the move spoke of a late-July letter signed by forty-three downtown
business owners and employees urging the city to move the rally or impose enough
accommodations and restrictions—including providing food, toilets, shade, and security—to
ensure public safety.
“Sending hundreds of hungry, thirsty, overheated, overcrowded people roaming around
downtown, looking for a fight, is a veritable tinderbox,” said the letter.
As the emergency hearing dragged toward evening, Judge Glen Conrad gave a couple of hints
about his thinking. One was asking the defense whether the city should have asked Heinecke’s
events to move since the counterprotesters were expected to be larger in number. Another hint was
asking why he should ignore anti-rally tweets from the mayor and other members of the city
council.
Brown implored the judge to focus on the fact that it was City Manager Maurice Jones who
ultimately made the decision to move the rally.
Around 8:00 p.m., Conrad issued his opinion: the city’s “eleventh hour” attempt to revoke
Kessler’s permit did appear to be content discrimination. With the help of the ACLU and the
Charlottesville-based Rutherford Institute, Kessler had won his right to rally downtown.
As word of the ruling spread, Kessler and hundreds of fellow white nationalists were assembling
one mile away as they prepared to light torches.

CHARLOTTESVILLE BUILDS A WALL

Eleven years earlier, some local luminaries had gotten together to dedicate what is formally named
Charlottesville’s Community Chalkboard and Podium, more commonly called “the free speech
wall.”
It’s a monument like none other—a fifty-four-foot-long slab of slate with a constant supply of
chalk—a hands-on homage to the First Amendment, and it’s located right outside the front doors
of City Hall on the Downtown Mall. Local government provided the space, and financial donors
included Academy Award–winning actress Sissy Spacek, novelist Rita Mae Brown, and former
U.S. poet laureate Rita Dove.
 When the wall was dedicated in 2006, those on hand to chalk the first messages included best-
selling novelist John Grisham, Dave Matthews Band violinist Boyd Tinsley, and author George
Garrett. Journalist David McNair asked the sponsoring organization what would happen if neo-
Nazis and white supremacists someday tried to use the space, which also includes a small platform
for anyone who wants to speak.
“Those groups already have the right to express themselves on the Downtown Mall,” answered
Josh Wheeler of the Thomas Jefferson Center for the Protection of Free Expression. “One’s legal
right of free speech at the east end of the Downtown Mall will be no different after the monument
is completed than it was before.”

KESSLER’S PERMIT

One question hurled at the city council both before and after Unite the Right was why the ralliers
were allowed to rally at all. Why was a group of several hundred seemingly angry young men
given a permit to spew anti-Jewish, homophobic, white nationalist, and other highly charged
opinions?
Again, the answer is simple: the First Amendment.
“Congress shall make no law,” it reads, “respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.”
In the more than 225 years since the Bill of Rights was adopted, the U.S. Supreme Court has
taken an expansive view of this amendment. The few exceptions carved out by the Court involve
things like threats of imminent violence or “a clear and present danger.” As the city’s official post-
rally investigation—the Heaphy report—later indicated, law enforcement did have concerns about
the impending clash between white nationalists and antifa groups. Mayor Signer said in an email
to the Daily Progress that three troopers from the Virginia State Police met in a closed session of
the council a little over a week before the rally. “They had access to intelligence from the state-
level ‘fusion center,’” the mayor wrote. “But they failed to provide us with any evidence that could
have met the ‘credible legal threat’ standard of specific planned violence that would in turn have
enabled the city to deny the event.”