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Breaking: ACLU, Rutherford Institute File Federal Complaint on Behalf of Jason Kessler

An article published on Bearing Drift [1] is among the exhibits attached to a complaint filed in federal court late today by the ACLU of Virginia and the Rutherford Institute, calling on the City of Charlottesville to reverse its decision to revoke a permit granted to alt-right activist Jason Kessler to hold a rally in what was until recently called Lee Park, now known as Emancipation Park.

Lee Park Charlottesville 2013The “Unite the Right” rally has received international attention [2] because it will bring together controversial speakers [3] such as identitarian Richard Spencer, goat-blood-consuming Augustus Invictus, and Traditionalist Worker Party leader Matthew Heimbach.

After meeting behind closed doors (in likely violation of Virginia’s open meetings laws and the Freedom of Information Act), Charlottesville City Council ordered City Manager Maurice Jones to revoke Kessler’s permit to demonstrate in Lee/Emancipation Park and offer a permit to demonstrate instead in McIntire Park, about a mile away. Emancipation Park is about one acre in area while McIntire Park is about 100 times that size.

In Kessler’s complaint [4], the ACLU and Rutherford Institute lawyers argue that:

Plaintiff wishes to communicate a message that relates directly to the Park – specifically, his opposition to the City’s decisions to rename the Park, which was previously known as “Lee Park,” and its plans to remove a statue of Robert E. Lee from the Park.

As I put it in a Facebook discussion, “If the purpose of the liturgy is to worship at the base of an idol, you shouldn’t remove the congregation to a place without an idol.”

The City asserted, in its announcement that the rally had to be moved to McIntire Park, that Lee/Emancipation Park could not accommodate the crowds expected for the Unite the Right gathering. Kessler’s original permit application said the expected attendance would be 400 people but recent news reports suggest as many as 4,000 participants – not including counter-protesters, who have been granted permits to convene in two nearby downtown parks (McGuffey Park to the west and Jackson/Justice Park to the east).

Yet Lee/Emancipation Park has accommodated thousands of people in the past. One example: the September 2013 Charlottesville Pride festival had an estimated attendance of more than 3,500 [5]. The first Charlottesville Pride [6] event in 2012 had at least 2,000 attendees and subsequent festivals have had crowds of equal or larger sizes.

The ACLU/Rutherford-drafted complaint points out that Kessler is being treated differently by the City of Charlottesville on the basis of the content of his speech, and cites an unpermitted rally in February that featured Mayor Mike Signer’s remarks about making Charlottesville the center of the “resistance” against the Trump administration. For evidence, the complaint includes as an exhibit Rob Schilling’s February 15 article [1] on Bearing Drift, which explains how the City violated its own policies about regulating political rallies and other gatherings on public property.

Setting aside the details, the basis of the ACLU/Rutherford Institute complaint on behalf of Jason Kessler is summed up in its first paragraph:

The First Amendment guarantees political speech, including protest, the highest level of protection—and the right to speak out is most robust in traditional public fora, including public parks and streets. Since this country’s founding, people have taken to the parks, streets, and sidewalks to make their voices heard on matters of public concern. This case is about viewpoint discrimination by Defendants against Plaintiff. Plaintiffs views are highly controversial and have evoked strong protests and demands heard by City Council that his permit be revoked.

Let me make clear: Jason Kessler and his alt-right comrades express odious and repugnant ideas but the Constitution protects all of us, even when we are odious and repugnant – – especially when we are odious and repugnant. You can support constitutional liberties without supporting silly and repulsive ideas.

The Unite the Right rally is scheduled for Saturday. The court will have to act quickly to grant the relief sought in this complaint:

A. Enter judgment declaring that Defendants’ revocation, denial and/or modification of Plaintiffs requested permit to hold a demonstration in Emancipation Park on August 12, 2017 violates the First and Fourteenth Amendment to the United States Constitution;

B. Enter a temporary restraining order and/or preliminary injunction enjoining Defendants to permit the demonstration to go on as planned in Emancipation Park on August 12, 2017 from 12pm to 5pm and to provide such security as may be necessary to protect the rights of the demonstrators and the public.

C. Award Plaintiff his costs and reasonable attorneys’ fees in this action;

D. Grant Plaintiff such other and further relief, including damages for the violation of Plaintiff’s constitutional rights, as the Court may deem just and proper.

Full Disclosure: As a member of the board of the ACLU of Virginia, I participated in the deliberations that led to the decision to represent Jason Kessler, and offered some assistance in the drafting of the complaint.

A full copy of the complaint [4] is available on the Rutherford Institute web site [7].