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ACLU, Rutherford Institute demand city rescind decision to move Unite the Right
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ACLU, Rutherford Institute demand city rescind decision to move Unite the Right

File Kessler

FILE PHOTO—Blogger Jason Kessler reacts after being told to quiet down by Mayor Mike Signer during a 2016 Charlottesville City Council meeting in Charlottesville, Va.

Updated at 7:55 p.m.

The Albemarle County-based Rutherford Institute and the Virginia chapter of the American Civil Liberties Union are demanding that the city of Charlottesville give pro-white activist Jason Kessler permission to hold his Unite the Right rally in Emancipation Park as originally planned.

In a letter sent Tuesday, the organizations warned that the city’s decision Monday to only approve Kessler’s permit if the event is moved to McIntire Park is a violation of his free speech rights.

Charlottesville officials cited safety concerns in their decision.

If the city doesn’t grant the permit as originally requested, the organizations indicated that they might pursue legal action. They gave the city 24 hours to assure Kessler that the rally could proceed as planned.

The letter was signed by Claire Guthrie Gastañaga, executive director of ACLU Foundation of Virginia and John W. Whitehead, president of The Rutherford Institute.

City officials confirmed that they received the letter but declined comment until they could review it.

Kessler said Monday that he won’t accept the condition because McIntire Park lacks the symbolism provided by the Confederate Gen. Robert E. Lee statue that has stood in Emancipation Park — known until recently as Lee Park — since the 1920s.

The organizations claim the city’s decision is unconstitutional because, “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.”

“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,” the letter states.

The letter said the city must give Kessler a chance to answer the city’s concerns.

“Otherwise, it appears that the city’s revocation of the permit is based only upon public opposition to the message of the demonstration, which would constitute a violation of the organizers’ fundamental First Amendment rights.”

The city’s decision came after officials worried that multiple planned protests and thousands of protesters vehemently opposed to each other, all crammed into a four-block area downtown, could prove a safety issue.

Saturday’s rally, scheduled for noon to 5 p.m., is expected to be attended by 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.

The alt-right groups have indicated that they will have as many as a thousand protesters at the park.

Local chapters of Showing Up for Racial Justice and Black Lives Matter posted calls on social media for others to join them in counter-protest. Congregate Charlottesville, a multi-denominational clergy group, made a call for 1,000 clergy, especially white clergy, to attend the rally in protest.

Officials have declined to release a crowd estimate, but figures bandied about range from 2,000 to 8,000.

Other First Amendment experts say the city has the right to protect public safety by restricting the rally’s location.

Local attorney Lloyd Snook said the city could look to the history of the organizations taking out the permit as reasons for relocation or even denial of a permit.

 “The city is certainly able to make its own determination that the alt-right events tend to have violence that is not issued on them by others,” he said. “If someone is standing there about to light a bomb, you don’t have to wait until the bomb goes off to declare a safety issue.”

Snook said federal courts have backed the use of restrictive free speech zones at various events when local officials have a concern for public safety. Such a zone was created at the 2004 Democratic National Convention in Boston when officials restricted demonstrations to a wire enclosure topped by razor wire outside the convention that effectively separated protesters from convention delegates.

Free speech zones were utilized at the national level during the administrations of President George W. Bush and President Barack Obama. Congress passed a law that was signed by Obama in 2012 to give the Secret Service more authority to restrict speech and make arrests.

The U.S. Supreme Court has ruled that governments may restrict time, place and manner of demonstrations. Those restrictions, however, must be neutral with respect to content, narrowly drawn, serve a significant government interest and leave open alternative channels of communication.

 “The court basically said that as long as the reason for the relocation didn’t have anything to do with the content, it was acceptable,” Snook said.

Clayton N. Hansen, executive director of Thomas Jefferson Center for the Protection of Free Expression, said the city’s reasons for changing the venue “appear to be content neutral.” He said the move to McIntire “ultimately facilitates more speech than would have been possible” at Emancipation Park.

“Most important, at least from a free speech standpoint, is the fact that moving the rally in no way forecloses any protected expression,” Hansen said. “Furthermore, there’s no concern about the so-called heckler’s veto, where hostile audiences act to shut down protected speech. Mr. Kessler and the other speakers at Unite the Right will be allowed to say whatever they want to.”

The ACLU and The Rutherford Institute think otherwise. They argue that if the city relocates the rally because of the number of counter-protesters expected, it would effectively be a heckler’s veto.

“Any decision that the demonstration under the permit poses a threat to public safety should be based solely on the plans and actions of the Unite the Right organizers, not of those who plan to be present in opposition,” the organizations’ leaders wrote. “Otherwise, hecklers and counter-demonstrators could always shut down speech they disagree with by manufacturing threats to public safety.”

Bryan McKenzie is a reporter for The Daily Progress. Contact him at (434) 978-7271, bmckenzie@dailyprogress.com or @BK_McKenzie on Twitter.

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