The Importance of Free Speech: “Unite the Right” Rally
Written By: Tausha Saunders, ’19
By now, you have all heard about the “Unite the Right” Rally that occurred on Charlottesville, VA on August 12, 2017. But perhaps you haven’t heard that the ACLU of Virginia filed a preliminary injunction on behalf of the organizer of the Rally, Jason Kessler.
On Saturday, August 12, 2017, one of the largest gatherings of far-right and white supremacist groups in recent US history descended upon Charlottesville, VA.[1] Organizers of this self-styled “Unite the Right” rally maintained, nominally at best, that their purpose was to peaceably protest the planned removal of Confederate general Robert E. Lee’s statue.[2] Nevertheless, the white supremacists arrived heavily armed and clashed violently with anti-racist protestors, culminating in a state of emergency declaration for the city of Charlottesville, and white supremacist sympathizer James Fields Jr. ramming his car into anti-racist protesters, killing 32-year-old Heather Heyer and injuring at least 19 others.[3]
The American Civil Liberties Union has a long and storied past of defending free speech and ensuring racial justice in America, but many supporters questioned their decision to defend Jason Kessler, organizer of the “Unite the Rally.”[4] Kessler’s permit to hold this rally was granted by Charlottesville officials on June 13, 2017.[5] Citing “safety concerns”, these same local officials attempted to revoke Kessler’s permit and further relocate the “Unite the Right” rally to a less central location just one week before the rally was scheduled.[6]
The ACLU of Virginia quickly filed a preliminary injunction on behalf of Kessler, arguing that city of Charlottesville’s revocation of Kessler’s permit constituted content based discrimination, a violation of the First Amendment.[7]
On August 11, 2017, the court found that Kessler could likely prove that the city of Charlottesville committed content-based restrictions in its request that the rally be relocated, and further in its revocation of Jason Kessler’s permit.[8] “Government regulation of speech is content based if a [restriction] applies to particular speech because of the topic discussed or the idea or message expressed.”[9]
The Fourth Circuit Court of Appeals held that the City’s revocation of Kessler’s permit while allowing counter-protestors to maintain their permit was evidence that the revocation “was based on the content of his speech.”[10] This conclusion was further supported by the City Council member’s social media pages, which revealed opposition to Kessler’s ideas.[11]
This decision to grant Kessler preliminary injunctive relief restored his permit, and legalized the “Unite the Right” rally, a result that perplexed and angered many liberal ACLU supporters.[12] One member of the Board of Directors for the affiliate ACLU of Virginia resigned, tweeting, “What’s legal and what’s right are sometimes different. I won’t be a fig leaf for Nazis.”[13]
This is not the first time the organization has found itself in hot water for defending the free speech rights of neo-Nazis. In 1978, a small group of neo-Nazis planned to march through Skokie, Ill., a suburb of Chicago that was heavily populated by Jewish Holocaust survivors.[14] The ACLU successfully defended the right for the neo-Nazis to march in Skokie, and though the march never came to fruition, the organization’s membership significantly decreased in response to their decision to represent neo-Nazis. Members of the ACLU were repulsed, as they are now, that the organization would defend such hateful speech.
But the ACLU must, periodically, defend hate speech. It does so with the understanding that there is no practical way to protect your own speech from government restriction without ensuring the same protection for speech you disagree with. Moreover, the legal mechanisms used to restrict the speech you disagree with today can and will be used to restrict the speech your support tomorrow.
This is not an exoneration for the violence used in Charlottesville, VA. Under Brandenburg v. Ohio, speech that intentionally incites “imminent lawless action” or is determined to produce a likelihood of illegal action is not protected by the First Amendment.[15] However, it is clear to me that the best way to combat hate speech is to follow in the proud tradition of the ACLU, by allowing more speech that is unequivocal in its rejection of white supremacist ideas, and offers alternatives that realize a tolerant and just society.
[1] Dara Lind, Unite the Right, the violent white supremacist rally in Charlottesville, explained, Vox (2017), https://www.vox.com/2017/8/12/16138246/charlottesville-nazi-rally-right-uva (last visited Sep 15, 2017).
[2] Id.
[3] Id.
[4] Jason Kessler v. City of Charlottesville and Maurice Jones, Charlottesville City Manager, American Civil Liberties Union of Virginia (2017), https://acluva.org/20113/jason-kessler-v-city-of-charlottesville-and-maurice-jones-charlottesville-city-manager/ (last visited Sep 15, 2017).
[5] Id.
[6] Id.
[7] Kessler v. City of Charlottesville, Virginia, No. 3:17CV00056, 2017 WL 3474071, at *2 (W.D. Va. Aug. 11, 2017).
[8] Id.
[9] Id. (quoting Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015)) (holding that a local sign ordinance that restricts the content of signage is constitutional only if the restrictions can survive strict scrutiny standard)
[10] Kessler, No. 3:17CV00056, 2017 WL 3474071, at *2.
[11] Id.
[12] Joseph Goldstein, After Backing Alt-Right in Charlottesville, A.C.L.U. Wrestles With Its Role, The New York Times (2017), https://www.nytimes.com/2017/08/17/nyregion/aclu-free-speech-rights-charlottesville-skokie-rally.html?mcubz=3 (last visited Sep 15, 2017).
[13] Id.
[14] Id.
[15] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).