Case Summary and Outcome

The United States District Court of Western District of Virginia, Charlottesville division held that a decision by City of Charlottesville officials to declare a rally an unlawful assembly did not violate the participants’ rights to freedom of speech under the First Amendment to the United States Constitution. The rally, which was organized by an Alt-Right group to protest the decision to remove a Confederate-era statue, became violent after clashes between participants and counter-protestors. Law enforcement officials policing the rally then declared the rally an unlawful assembly and ordered all individuals to disburse. The Court held that while the City had an obligation not to suppress individuals’ free speech themselves that obligation did not extend to preventing private third parties from suppressing that speech. It also held that the decision to declare the rally an unlawful assembly was a proportionate reaction to the threat to public safety posed by the violence.

Facts

On August 12, 2017, Jason Kessler – a member of “Unite the Right”– planned to hold a rally in Charlottesville, Virginia in response to the Charlottesville City Council’s (the City) proposal to remove a Confederate statue. Kessler’s objectives for the rally were to “speak, hear others speak, and engage in expressive political activity.” [p. 5] Kessler stated that the rally would showcase the “Alt-Right” message, and acknowledged that this message is considered by many “to be offensive due to its liberal use of racially and religiously offensive language.” [p. 5] David Matthew Parrott attended the rally to “engage in ‘expressive political activity’ in support of Kessler.” [p. 5]

Various groups of counter-protesters – including Antifa, “a group ‘who dislike Alt-Right political messaging’” attended the rally. [p. 5] The rally was marred by violence: an independent review of the protest after the fact noted that “demonstrators and counter-protestors were fighting inside the park and they engaged in more violent confrontations – throwing debris, attacking each other with sticks, and recklessly spraying pepper spray.” [p. 7] Parrot alleged he was surrounded by Antifa members, and Kessler noted that when he attempted to enter the venue of the rally he was told that there was only one entry point but that that entry point was “crowded with Alt-Right protestors and Antifa counter-protestors who were engaging in skirmishes.” [p. 8-9] Law enforcement did not actively intervene in the violence between the two groups. The independent report on the rally quoted the Chief of Police as saying “let them [the protestors and counter-protestors] fight, it will be easier to declare an unlawful assembly.” [p. 8] Virginia State Police Troopers were also quoted as advising citizens that “they were ‘under orders’ not to intervene or ‘not to break up fights.’” [p. 8]

Before Kessler was permitted to enter the area, law enforcement declared the event an unlawful assembly and all individuals present at the rally were ordered to leave the area. Parrot did not leave the area, and “walked up to the Confederate statue on the hill to achieve a better vantage point for planning his group’s exit” and was then arrested. [p. 9]

Kessler and Parrot filed an action in the District Court, Western District of Virginia, Charlottesville Division against the City and four City officials: the then-Chief of Police, A. S. Thomas; police Lieutenant Becky Crannis-Curl; then-City Manager Maurice Jones; and the current City Manager. Kessler and Parrot submitted that Thomas and Crannis-Curl had violated their First Amendment rights by allowing counter-protestors to impose a ‘heckler’s veto’ on the rally, and that Jones had approved of the police “plan to permit the counter-protestors to impose a heckler’s veto.” [p. 2] In addition, Kessler and Parrot argued that the City was liable for Jones’s “ratification of the stand-down order Thomas issued to police in order to make it ‘easier to declare an unlawful assembly.’” [p. 1-2]. All the city officials filed motions to dismiss Kessler and Parrot’s claims.

Decision Overview

Judge Norman K. Moon delivered the judgment of the United States District Court, Charlottesville division. The central issue before the Court was whether the City’s decision to declare the “Unite the Right” rally an unlawful assembly was a violation of the First Amendment.

Kessler and Parrot argued that Antifa sought to prevent “Unite the Right” from expressing their message and that Antifa had engaged in “’violent rhetoric’ against Alt-Right and politically conservative speakers at rallies and events across the country prior to” their rally. [p. 4-5]. In addition, Kessler and Parrot argued that the City was aware that “Antifa-associated groups intended to impose a ‘heckler’s veto’ on Kessler’s event”, and would engage in violence at the rally. [p. 5]

Kessler and Parrot argued that the City had a duty to take action to protect their First Amendment rights, and that in declaring an unlawful assembly the City effectuated a heckler’s veto because it was based on “the allegedly expected and foreseeable hostile reaction” to the “Unite the Right” message. [p. 10] Kessler and Parrot also submitted that the declaration of the rally as an unlawful assembly infringed their First Amendment rights as City officials were obliged to “narrowly tailor the unlawful assembly declaration by picking non-violent participants from the pool of protestors and counter-protestors to remain on the site.” [p. 21]

The City submitted that “the state is under no obligation to protect [Kessler and Parrot’s] First Amendment rights from the acts of private parties” and so were within their rights to refrain from subduing the crowd before declaring the rally an unlawful assembly. [p.10] It argued that its decision to declare the rally an unlawful assembly was not based on a prediction that the counter-protestors would respond to the “Alt-Right” message and so was “a content- and viewpoint-neutral” limitation on freedom of speech to protect public safety. [p. 10]

The Court, with reference to Rock-for-Life-UMBA v. Hrabowski, No. 09-1892 (4th Cir. 2010) and Christian Knights of Ku Klux Klan Invisible Empire, Inc v. Stuart, 972 F.2d 365 (D.C. Cir. 1992), defined a heckler’s veto as occurring when the state “suppresses speech based on the threat, or possibility, of a hostile or violent response from the audience.” [p. 10]

The Court examined the effect of the “stand-down order” given to police to not interfere in the fights between the protestors and counter-protestors, and referred to the Supreme Court case of DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) and the Fourth Circuit cases of Doe v. Rosa, 795 F. 3d 429 (4^th Cir, 2015), Turner v. Thomas, 313 F. Supp. 3d 704 (W.D. Va. 2018) and Pinder v. Johnson, 54 F. 3d 1169 (4^th Cir. 1995). These cases had confirmed that there was no legal duty on law enforcement to protect life, liberty or property (under the Fourteenth Amendment), and the City had argued that this must mean there is likewise no affirmative constitutional obligation to protect First Amendment rights. The Court noted that the language of the First Amendment – that “Congress shall make no law … abridging the freedom of speech or of the press; or of the right of the people peaceably to assemble” – only guarantees that the state will not suppress speech; it “does not guarantee that the state will protect individuals when private parties seek to suppress it.” [p. 13] The Court stressed that the First Amendment embodies negative and not positive rights, and rejected Kessler and Parrot’s reliance on Berger v. Battaglia, 779 F.2d 992 (4^th Cir, 1985), noting that that case “in no way suggests that the state had an obligation to prevent hecklers from drowning out the plaintiff’s First Amendment activities in the first place.” [p. 15]

The Court discussed Bible Believers v. Wayne County, 805 F. 3d 228 (6^th Cir. 2015) which had been referred to by both the City and Kessler and Parrot. The Court again rejected Kessler and Parrot’s reliance on the case, holding that the circumstances in Bible Believers – where the protesters remained peaceful in the face of counter violence – were distinguishable from the present case where violence was “actual and extreme” and the safety of police officers was threatened. [p. 18] The Court noted that the jurisprudence emphasizes that “consideration must be afforded for the safety of law enforcement,” and that police officers “have no obligation ‘to go down with the speaker.’” [p. 17]

The Court clarified the City’s obligations in protecting Kessler and Parrot’s First Amendment rights: the City “did, of course, have a constitutional obligation to refrain from restricting [Kessler and Parrot’s] speech on account of the threat, or possibility, of public hostility to their Alt-Right message, [but] the law is clear that [the City] had no constitutional obligation to prevent that public hostility.” [p. 18]

In examining the legitimacy of the decision to declare the rally an unlawful assembly, the Court referred to Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786 (2011), Turner Broadcasting Sys. Inc v. Fed. Commc’ns Cmm’n,  512 U.S. 622 (1994) and Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984). It noted that it is required to “examine whether the restriction furthers an important or substantial governmental interest that is unrelated to the suppression of free expression and no more extensive than necessary in order to serve that governmental interest.” [p. 19]

The Court evaluated whether the City’s decision to declare an unlawful assembly was effectuating a heckler’s veto on whether “it was declared because of the threat, or possibility, of a hostile reaction from the public.” [p. 19] The Court noted that whether the decision was taken for content-based or content-neutral reasons impacts on the level of scrutiny the Court has to apply: strict scrutiny for the former and intermediate for the latter. Kessler and Parrot had argued that the decision was content-based because, they submitted, it was taken because the City believed the counter-protestors would respond to the rally organizers’ “Alt-Right” message. However, the Court held that “it is difficult to find that the unlawful assembly was declared for anything but content- and viewpoint-neutral reasons.” [p. 21] The Court held that Kessler and Parrot’s allegation that the City allowed the violence to enable them to declare the rally an unlawful assembly was “devoid of any factual content and is akin to a mere legal conclusion.” It noted that the City was concerned with the real violence between the protestors and counter-protestors which threatened officers’ safety. The Court stressed that Kessler and Parrot’s own allegations demonstrated that the decision for law enforcement to not intervene in the violence was for the protection of officers.

In rejecting Kessler and Parrot’s argument that the City should have allowed non-violent participants to remain on site, the Court held that the unlawful assembly decision was “appropriately tailored” and was no more extensive than necessary to achieve the interests of limiting the spread of violence and protecting officers’ safety. The Court added that the decision did not prevent the possibility of the rally participants re-congregating another time or in another place.

Accordingly, the Court held that Kessler and Parrot “had no constitutional right to state protection from private parties who take actions to suppress their speech, nor did [Kessler and Parrot] suffer any violation of a constitutional right when the unlawful assembly was declared.” [p. 23]