CHARLOTTESVILLE — That this weekend’s display of hate, violence and civil disorder resulted in the death of Heather Heyer is not just a tragedy for those who knew and loved Heather, but for all of us who believe that love is greater than hate and that freedom for all is imperative if we are to stand strong against the forces of tyranny that continue to batter this nation.
There is always the temptation following a tragedy to point fingers and find someone to blame in addition to those directly responsible for committing acts of violence. It is unfortunate that those leading the charge right now have chosen to cast the blame on civil liberties organizations that were compelled to stand up for the principles of the Constitution when the government failed to do so. To suggest that the ACLU of Virginia or The Rutherford Institute or the federal district court were in any way complicit in this weekend’s violence is to do a grave disservice to every individual who has ever fought and died for the freedoms on which this nation was founded.
The City of Charlottesville had several lawful options it could have pursued to prepare for this weekend’s anticipated clash between protesters.
1. The City could have chosen to close the downtown forum altogether and move all three permit-holders to McIntire Park. It did not do so. Instead, the City Manager created a clear First Amendment crisis by revoking only one of the three downtown permits granted for this weekend, by failing to provide any evidentiary-based factual support for its actions, and by waiting to act until mere days before the anticipated rallies were to take place.
2. The City should have ensured that police were under clear orders to maintain law and order by establishing clear boundaries and safeguarding the permit zones. In fact, the City made it clear in press statements and in legal filings that it was preparing for demonstrations downtown by both sides whether or not the Unite the Right rally’s permit for Emancipation Park was honored. According to news reports, more than 1000 armed police, riot teams plus the National Guard were deployed to maintain law and order at the August 12 demonstration. As indicated by its preparations for the July 8 KKK rally, the City and law enforcement were completely cognizant of the need to establish barriers keeping the two sparring sides apart and to ensure that all three permit holders’ rights to access their respective spaces were respected.
3. The First Amendment provides for the right to peacefully assemble in public. In other words, no permit is necessary for citizens to assemble in public. The permitting process simply provides for space to be reserved by a particular group at a particular space for a particular purpose. While the government has the discretion to refuse permits based on reasonable time, place and manner concerns, it may not discriminate against a group based on the content of their speech. Whether or not a permit had been issued for any of the three downtown parks on August 12, the protesters and counterprotesters made it clear that they planned to exercise their right to assemble. Many of those assembled maintained their commitment to peaceful, nonviolent action. The rights of those who exercised their First Amendment rights peacefully and lawfully were diminished by those who opted to act with violence and in clear violation of the law. There is no defense for such actions.
As Glenn Greenwald recognized in his article in The Intercept taking issue with those who attacked the ACLU (and The Rutherford Institute) for challenging the City of Charlottesville over its unequal application of the permitting laws, civil liberties advocates “defend the rights of those with views we hate in order to strengthen our defense of the rights of those who are most marginalized and vulnerable in society.”
The Rutherford Institute remains committed to preserving, protecting and defending the Constitution, even in those most difficult situations when doing so means defending the rights of those whose views may be hateful or unpopular.
The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.