From Marches to Motions: The Future of Protest Management After the Violent Protest in Charlottesville, Virginia

From Marches to Motions: The Future of Protest Management After the Violent Protest in Charlottesville, Virginia

Martha Effinger*

           This year began with the Women’s March on Washington, which “was likely the largest single-day demonstration in recorded U.S. history.”  Erica Chenoweth & Jeremy Pressman, This Is What We Learned by Counting the Women’s Marches, Wash. Post (Feb. 7, 2017),  Now, in the wake of what happened in Charlottesville, Virginia, where three people were killed and thirty-four injured, there are more marches, rallies and protests occurring across the United States.  Maggie Astor et al., A Guide to the Charlottesville Aftermath, N. Y. Times (Aug. 13, 2017),; Emily Bohatch, Is There a Protest Near You Today?, USA Today (Aug. 15, 2017, 2:26 PM),  The city of Charlottesville refused to allow the “Unite the Right” rally unless they relocated, yet that failed.  See Laurel Wamsley, Charlottesville Violence Highlights Cities’ Struggle to Balance Rights and Safety, NPR (Aug. 14, 2017, 6:43 PM),  Now, as more marches arise, learning from our mistakes to prevent future violence is key.  Attorneys and local officials must “be lawful and in keeping with the Constitution.”  Id.  They must understand the restrictions the judiciary is under and the underlying reasoning of the courts’ decisions, so next time, local officials can “constitutionally . . . prevent events like the horror we saw in Charlottesville.”  Id.

On June 13, 2017, the city of Charlottesville approved a permit application from Jason Kessler, an alt-right activist, for the “Unite the Right” rally scheduled on August 12, 2017.  ACLU-VA, Rutherford Institute File Suit to Uphold Right of Free Speech for All, ACLU Va. (Aug. 10, 2017) [hereinafter ACLU-VA, Rutherford Institute File Suit],  Mr. Kessler estimated that 400 people would be attending to protest the removal of the General Robert E. Lee statue and the renaming of Lee Park, now called Emancipation Park.  Id.  However, according to the Charlottesville police captain, Victor Mitchell, the police expected between 2,000 to 6,000 people at the rally.  Sarah Toy & Charles Ventura, Federal Judge Allows ‘Alt-Right’ Rally to Go Ahead as Planned, USA Today (Aug. 12, 2017, 10:57 AM),  With such a large crowd expected, the city refused to allow the rally to move forward due to safety concerns, unless it was moved to another location approximately a mile from downtown.  Id.  On Thursday, August 10, 2017, Mr. Kessler, with the help of the American Civil Liberties Union of Virginia (ACLU) and the Rutherford Institute, filed suit in the United States District Court for the Western District of Virginia.  ACLU-VA, Rutherford Institute File Suit, supra.  The Complaint alleges that not allowing the previously approved demonstration is a violation of Mr. Kessler’s First Amendment right to freedom of speech.  Id.   On August 11, 2017, Judge Conrad issued an opinion granting Mr. Kessler’s preliminary injunction to stop the city “from interfering with the planned demonstration” in Emancipation Park.  Kessler v. City of Charlottesville, No. 3:17CV00056, 2017 WL 3474071, at *1 (W.D. Va. Aug. 11, 2017).

The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble.”  U.S. Const. amend. I.  However, “[t]he First amendment does not provide the right to conduct an assembly at which there is a clear and present danger of riot, disorder, or interference with traffic on public streets, or other immediate threat to public safety or order.”  Andrew M. Winston, United States, in Right to Peaceful Assembly 18, 19 (2014), (emphasis added).  The government may impose restrictions on an assembly’s time, place, and manner as long as the restrictions are based on elements other than the content of the speech, “are narrowly tailored to serve a significant governmental interest,” and other channels of communication are left open.  Id. at 18 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

Charlottesville’s City Attorney, Craig Brown, stated that “[l]aw enforcement and the city recognize that there was a significant likelihood of violence.”  Robert Benincasa, The Role the Judiciary Played in the Rally in Charlottesville, Va., NPR (Aug. 21, 2017, 7:47 AM),  The court ruled in favor of Mr. Kessler, relying on evidence that the city was discriminating against Mr. Kessler on the basis of his beliefs.  Id.  However, the city did not provide the court with evidence regarding the likelihood of violence.  Id.  Instead, they focused on the discrepancy between the listed number of people on the permit and the expected turnout.  Id.  Further, the city did not revoke the counter-protestors’ permits, but solely Mr. Kessler’s permit.  Kessler, 2017 WL 3474071, at *1.  “The disparity in treatment between the two groups with opposing views suggests that the defendants’ decision to revoke Kessler’s permit was based on the content of his speech rather than other neutral factors that would be equally applicable to Kessler and those protesting against him.”  Id. at *2.

The Governor of Virginia, Terry McAuliffe, stated that the courts in Charlottesville should have worked with city officials more regarding the lawsuit and should not have allowed Mr. Kessler’s permit to be upheld.  David Greene, Incident in Charlottesville Will Make Us Stronger, Gov. McAuliffe Says, NPR (Aug. 14, 2017, 7:45 AM),  The governor stated that, in the future, he is looking forward to working with the judges “to get a better understanding . . . [that] our job is to keep our community safe.”  Id.  Given that the city focused its argument on the larger than expected crowd size, is it fair to say that the judge did not understand that the community was in danger?  Or, did the judge simply have insufficient evidence of the likelihood of violence?  If law enforcement and the city had information regarding a “significant likelihood of violence,” then why not present that evidence, even if the standard is extremely high?  Benincasa, supra.  There were posts on social media and other public sources demonstrating a possibility of violence.  Id.  NPR reports that:

Would-be demonstrators took to Facebook, threatening city officials and counter-protesters.  The goal is to get a thousand men, one said, to crush and demoralize antifa to the point where they don’t return to the park.  Another posted, I can assure you there will be beatings.  Rally organizer Jason Kessler boasted in a podcast.  He said his rally would be like the one in Berkeley, Calif. in April where demonstrators clashed violently with counter-protesters.

Id.  It is clear from the holding in Kessler that, in the future, the possibility of violence should be made known, even if the standard is high.  Further, revoking both permits may have been an oversight, but it also may have been the evidence the judge needed to rule in the city’s favor.

Because the city of Charlottesville was enjoined from interfering at the demonstration, Boston prepared differently for the prescheduled “Free Speech” rally on Saturday, August 19, 2017.  Ray Sanchez, Thousands March in Boston in Protest of Controversial Rally, CNN (Aug. 19, 2017, 7:48 PM),   Mayor Martin Walsh stated, “The courts have made it abundantly clear they have a right to gather no matter how repugnant their views are.”  Id.  Consequently, Boston took steps to discourage violence by banning any glass containers or flag poles, but did not revoke any permits.  Id.  Boston also issued at least 500 police officers to close streets and separate protesters and counter-protestors.  Id.

Boston focused on separation and violence prevention through police support and denouncing violence.  Id.  However, “[q]uestions about how governments manage protests are likely to continue, and to be argued in court.”  Wamsley, supra.  It is important that we learn from the past so that next time there is a significant likelihood of violence, attorneys, government officials, and judges can constitutionally protect citizens and the community from destruction and violence.



*Martha Effinger is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review, the treasurer of Women’s Bar Association, the treasurer of If/When/How: Lawyering for Reproductive Justice, and a member of the Royal Graham Shannonhouse III Honor Society.  This upcoming summer, Martha will join Miles & Stockbridge, PC as a Summer Associate.



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