CHARLOTTESVILLE, Va. — Pointing out that the First Amendment prohibits the government from blocking a protest based on its content or viewpoint, or based on how the government anticipates others will respond to the protest, attorneys for The Rutherford Institute and American Civil Liberties Union of Virginia (ACLU) have filed a First and Fourteenth Amendment lawsuit against the City of Charlottesville, Va., for discriminating against protesters who espouse highly controversial views and blocking their access to a historic downtown park while allowing counterdemonstrators access to parks in the vicinity. The complaint argues that City officials violated activist Jason Kessler’s constitutional rights when they revoked his permit five days before a long-planned August 12 rally in Emancipation Park to protest the removal of a Confederate statue from the park and insisted that the demonstration be moved to a more isolated location over a mile away. Two other groups that oppose Kessler’s message, which have called on thousands of protesters to attend, have been granted permits by the City for downtown parks close to Emancipation Park on August 12.
“Tolerance is a double-edged sword. It has to go both ways. This governmental exercise in intolerance and censorship of speech that may be distasteful to the majority of the populace is exactly what the First Amendment was intended to prevent,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Ironically, it was these very same tactics that local governments attempted to use to silence First Amendment activists such as Martin Luther King Jr. and his followers and shut down their protest activities. You either believe in free speech for everyone—no matter their viewpoints—or you don’t.”
On May 30, 2017, Jason Kessler filed an application to hold an August 12 “Unite the Right” free speech rally in Emancipation Park in Charlottesville, Va., to protest the removal of a Confederate statue. The permit was granted on June 13. On August 7, just five days before the scheduled demonstration, Kessler was informed that he could not hold the rally unless he moved it to a park a mile away. The City claimed that “many thousands” would be attending the “Unite the Right” event and that the Park could not safely accommodate a crowd of that size. In a complaint filed in federal district court on behalf of “Unite the Right” organizer Jason Kessler, The Rutherford Institute and ACLU allege that the City’s so-called concern for safety due to the number of Unite the Right participants (estimated by the City to be “many thousands”) is unsupported by evidence and is a pretext for allowing the City to discriminate against an unpopular viewpoint while favoring a more popular one. Despite the City’s claim that Emancipation Park could not safely accommodate a crowd of thousands, the Park has historically been the site of many gatherings over the years with crowds of several thousands, including the Cville Pride Festival. The lawsuit asks that the City be ordered to allow the demonstration as scheduled. The lawsuit asserts that moving the demonstration would undermine its message of support for the Lee statue, that there is no support for City’s claim that the demonstration cannot be accommodated in the park, and so revocation of the permit violates the First Amendment.