Charlottesville showed that our First Amendment jurisprudence hasn’t reckoned with our Second Amendment reality.
When U.S. District Judge Glen E. Conrad rejected Charlottesville, Virginia’s attempt to relocate Saturday’s white nationalist rally, he wrote that “merely moving [the] demonstration to another park will not avoid a clash of ideologies” between demonstrators and counter-protesters. He also acknowledged that “a change in the location of the demonstration would not eliminate the need for members of the City’s law enforcement, fire, and emergency medical services personnel to appear at Emancipation Park. Instead, it would necessitate having personnel present at two locations in the City.”
As it turned out, the nightmare that unfolded on Saturday in this small college town involved a great deal more than an ideological clash and demanded far more police protection than was available. Dozens of white nationalists showed up toting semi-automatic weapons, as did some counter-protesters, making it all but impossible for police to intervene when violence erupted. In short order, peaceful protesters were forced to hide as armed rioters attacked one another with clubs, smoke bombs, and pepper spray.
Complaints abound that law enforcement officers looked on from the sidelines as the brutality quickly escalated into a crisis. The tragedy culminated in the death of 32-year-old Heather Heyer when a white supremacist rammed his car into a group of peaceful protesters.
Seen in isolation, Conrad’s order was grounded in solid First Amendment doctrine: Charlottesville could not, he ruled, relocate the racist demonstrators “based on the content of [their] speech.” This is textbook law, but one is left to wonder whether it takes into account armed white supremacists invading a city with promises of confrontation. Conrad’s decision seems to have been issued in a vacuum, one in which Second Amendment open-carry rights either swallowed First Amendment doctrine altogether or were simply wished away, for after-the-fact analysis. The judge failed to answer the central question: When demonstrators plan to carry guns and cause fights, does the government have a compelling interest in regulating their expressive conduct more carefully than it’d be able to otherwise? This is not any one judge’s fault. It is a failure of our First Amendment jurisprudence to reckon with our Second Amendment reality.
Charlottesville proves that this issue is hardly theoretical anymore. In his order, Conrad chose to exclude from his First Amendment analysis the very strong possibility that demonstrators would carry weapons. (The city police warned the court that hundreds of protesters would bring firearms and that militia members would be in attendance.) But, ironically, by protecting the free speech rights of the white supremacists, Conrad may have ultimately suppressed speech by ensuring an armed confrontation between the neo-Nazis and the counter-protesters would break out and that police would be powerless to stop it until blood was spilled. Virginia Gov. Terry McAuliffe later claimed that the militia members “had better equipment than our State Police” — and that their weapons prevented law enforcement from imposing order and protecting peaceful protesters. While we don’t yet know the full details of what happened or how, the governor’s statement suggested that the presence of large quantities of lethal guns had in fact effectively silenced the many people who’d assembled to peacefully express their opposition to racism.
This conflict between the right to bear arms and the right to free speech is nothing new, but the sudden surge in white nationalist activism has made it painfully obvious that, in the public square, the right to bear arms tends to trump the right to free speech. Confederate sympathizers are bringing weapons of war to their demonstrations — just last month, in fact, Ku Klux Klansmen carried guns to a protest in an adjacent Charlottesville park. Forty-five states, including Virginia, allow some form of open carry. So long as armed demonstrators comply with their permits and do not openly threaten anyone, their protests are perfectly legal.
But of course, the presence of a gun itself dramatically heightens the odds that somebody is going to get shot. And, as Saturday proved, the presence of many guns, particularly the sort that can kill many people in very little time, may dissuade law enforcement from stepping in when a protest gets out of hand. The result is an alarming form of censorship: Nonviolent demonstrators lose their right to assemble and express their ideas because the police are too apprehensive to shield them from violence. The right to bear arms overrides the right to free speech. And when protesters dress like militia members and the police are confused about who is with whom, chaos is inevitable.
This problem is especially acute in public areas like Charlottesville’s Emancipation Park and the surrounding streets and walkways. The Supreme Court recently reminded us that parks and sidewalks “occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate.” These “traditional public fora” have, according to the court, “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”
So the government doesn’t get to bar neo-Nazis from marching in a park just because they’re neo-Nazis. But what about neo-Nazis who are toting around assault weapons? As the world saw on Saturday, armed agitators can quickly turn a public forum into a public brawl and hijack peaceful assembly. Current First Amendment doctrine praises the open debate that is supposed to occur in our streets and parks. But it is poorly equipped to help courts apply the law when bullets may accompany the free exchange of ideas.
The seminal case protecting the rights of white nationalists to march in the streets is National Socialist Party of America v. Skokie, in which the Supreme Court ruled that the government could not bar neo-Nazis from marching through a Jewish neighborhood in Illinois.* Most civil libertarians (us included) believe the court got the Skokie case right. But it’s increasingly clear that Skokie can’t always help courts figure out how to deal with a post-Heller, post – “stand your ground” white nationalist protest. Whatever the courts were attempting to protect in the Skokie case wasn’t protected in Charlottesville. The marchers in Skokie didn’t promise to bring guns and armed militias to protect themselves.
Moreover, the “threat” posed by Nazis marching in Illinois, while symbolic and terrifying, especially in a town of Holocaust survivors, was not the threat that we are coming to your town with the power to kill you. Second Amendment enthusiasts will tell you that they don’t intend to deliver any message of this sort when they parade with semi-automatic weapons. Their message is merely that guns are outstanding. But one of the lessons of Charlottesville 2017 is that sometimes, when 500 people promise to come to a “protest” with guns to hurt people they want to see extinguished, they plan to do just that.
It’s become amply clear that open carry in Charlottesville led to little discussion and lots of fighting. Indeed, open carry seemed to guarantee that fewer people could speak and that the police had no choice but to wait until there was actual bleeding to call off the rally. If bringing guns to a speech event pushes the line for incitement past the point where people have gone mad, it’s time to have another look at the intersection of speech and open carry.
Rallies with guns cannot be treated, for First Amendment purposes, in the same fashion as rallies with no guns. When the police are literally too afraid of armed protesters to stop a melee, First Amendment values are diminished; discussion is supplanted by disorder and even death, and conversations about “time, place, and manner” seem antiquated and trite. In his analysis, Conrad treated today’s white nationalists like the neo-Nazis who planned to march through Skokie. That was a mistake. Ideas may not be able to hurt us, but assault weapons surely can. That’s why the white supremacists who marched through Charlottesville this weekend carried guns instead of Pokémon cards. It’s perfectly reasonable for courts to consider the speech-suppressing potential of guns when evaluating a city’s efforts to keep the peace. And it will be perfectly lethal if they fail to take the Second Amendment reality into account, as they reflect upon the values we seek to protect with the First.
-Excerpt and images courtesy of Slate.com, “The First and Second Amendments Clashed in Charlottesville, VA,” by Dahlia Lithwick and Mark Joseph Stern, August 14, 2017
Police Stood By As Mayhem Mounted in Charlottesville
State police and National Guardsmen watched passively for hours as self-proclaimed Nazis engaged in street battles with counter-protesters. ProPublica reporter A.C. Thompson was on the scene and reports that the authorities turned the streets of the city over to groups of militiamen armed with assault rifles.
CHARLOTTESVILLE, Va. — There was nothing haphazard about the violence that erupted today in this bucolic town in Virginia’s heartland. At about 10 a.m. today, at one of countless such confrontations, an angry mob of white supremacists formed a battle line across from a group of counter-protesters, many of them older and gray-haired, who had gathered near a church parking lot. On command from their leader, the young men charged and pummeled their ideological foes with abandon. One woman was hurled to the pavement, and the blood from her bruised head was instantly visible.
Standing nearby, an assortment of Virginia State Police troopers and Charlottesville police wearing protective gear watched silently from behind an array of metal barricades — and did nothing.
It was a scene that played out over and over in Charlottesville as law enforcement confronted the largest public gathering of white supremacists in decades. We walked the streets beginning in the early morning hours and repeatedly witnessed instances in which authorities took a largely laissez faire approach, allowing white supremacists and counter-protesters to physically battle.
Officials in Charlottesville had publicly promised to maintain control of the “Unite the Right” rally, which is the latest in a series of chaotic and bloody racist rallies that have roiled this college town, a place deeply proud of its links to Thomas Jefferson and the origins of American Democracy.
But the white supremacists who flooded into the city’s Emancipation Park — a statue of Confederate General Robert E. Lee sits in the center of the park — had spent months openly planning for war. The Daily Stormer, a popular neo-Nazi website, encouraged rally attendees to bring shields, pepper spray, and fascist flags and flagpoles. A prominent racist podcast told its listeners to come carrying guns. “Bring whatever you need, that you feel you need for your self defense. Do what you need to do for security of your own person,” said Mike “Enoch” Peinovich on The Right Stuff podcast.
And the white supremacists who showed up in Charlottesville did indeed come prepared for violence. Many wore helmets and carried clubs, medieval-looking round wooden shields, and rectangular plexiglass shields, similar to those used by riot police.
Clad in a black, Nazi-style helmet, Matthew Heimbach told ProPublica, “We’re defending our heritage.” Heimbach, who heads the Traditionalist Workers Party, a self-declared fascist group, said he was willing to die for his cause and would do whatever it took to defend himself. He was surrounded by a brigade of white supremacists, including members of the League of the South and the National Socialist Movement.
By the time Heimbach and his contingent arrived in downtown Charlottesville shortly before 11 a.m., what had started hours earlier with some shoving and a few punches had evolved into a series of wild melees as people attacked one another with fists, feet, and the improvised weapons they’d brought with them to the park. White supremacists and anti-racists began blasting each other with thick orange streams of pepper spray.
The police did little to stop the bloodshed. Several times, a group of assault-rifle-toting militia members from New York State, wearing body armor and desert camo, played a more active role in breaking up fights.
Shortly before noon, authorities shut down the rally and the related demonstrations and marched the white supremacists out of the park and into the streets.
Charlottesville Vice Mayor Wes Bellamy defended the police tactics. “I’m not in the business of throwing our police department under the bus, because they’re doing the best job they can, “ said Bellamy. “I don’t think the police officers were just twiddling their thumbs.”
The skirmishes culminated in what appears to have been an act of domestic terrorism, with a driver ramming his car into a crowd of anti-racist activists on a busy downtown street, killing one and injuring 19 according to the latest information from city officials. Charlottesville authorities tonight reported that a 20-year-old Ohio man had been arrested and had been charged with murder.
Two state police officers also died in a helicopter crash.
At a brief press conference this evening, Virginia officials declined to answer questions about the police response, but said they were not taken surprise by the violence or the number of protesters. “This could have been a much worse day,” said Virginia Gov. Terry McAuliffe, “We planned for a long time for today’s incidents.”
Charlottesville police Chief Al Thomas said at least 35 people had been injured — many of them from violent encounters between white supremacists and the counter-protesters. He said nobody had been wounded due to confrontations between police and the public.
In the weeks leading up to the protest, city and state officials put together a detailed plan for the rally, mobilizing 1,000 first responders, including 300 state police troopers and members of the National Guard. Judging from how events unfolded today, it appears that the strategy was to avoid direct confrontations with the protesters.
Miriam Krinsky, a former federal prosecutor who has worked on police reform efforts in Los Angeles, said it was too early to assess the law enforcement response in Charlottesville.
But she said a strategy of disengagement generally works to embolden unruly crowds.
“If things start to escalate and there’s no response, it can very quickly get out of control,” she said. “Individuals can and will get hurt.”
But an overly forceful response, she said, can also make the situation worse. Krinsky said attempts to seize weapons might have led to more clashes between police and protesters. “Trying to take things away from people is unlikely to be a calming influence,” she told ProPublica.
A good strategy, she said, is to make clashes less likely by separating the two sides physically, with officers forming a barrier between them. “Create a human barrier so the flash points are reduced as quickly as possible,” she said.
A.C. Thompson and Karim Hajj reported from Charlottesville, Va. Robert Faturechi reported from New York.