It’s Not Just Charlottesville: Government Officials Routinely Revoke Permits To Stymie Speech
After the harrowing events of last weekend in Charlottesville, Gov. Terry McAuliffe of Virginia has blamed the ACLU of Virginia for the public disorder which culminated in the death of Heather Heyer, the 32-year-old protester struck by a car. But it’s the government officials working under McAuliffe’s auspices — as well as McAullife himself — who still have much to answer for.
In its rebuttal to McAulliffe’s attempts at what it decried as “scapegoating,” the ACLU of Virginia noted in a Monday statement that police behavior on the day of the rally raised all manner of grave concerns:
“It is the responsibility of law enforcement to ensure safety of both protesters and counter-protesters. The policing on Saturday was not effective in preventing violence. I was there and brought concerns directly to the secretary of public safety and the head of the Virginia State Police about the way that the barricades in the park limiting access by the arriving demonstrators and the lack of any physical separation of the protesters and counter-protesters on the street were contributing to the potential of violence. They did not respond. In fact, law enforcement was standing passively by, seeming to be waiting for violence to take place, so that they would have grounds to declare an emergency, declare an ‘unlawful assembly’ and clear the area.”
If law enforcement indeed “stood passively by” and knowingly enabled the conditions whereby an “unlawful assembly” could be declared — as a means of circumventing a federal injunction that the ACLU had obtained on the white nationalists’ behalf — then this conduct ought to be aggressively investigated, and police should be regarded as bearing a large share of the responsibility for the ensuing violence. Of course, this is in no way any kind of defense of the white nationalists’ rhetoric, which is inherently provocative and almost guaranteed to generate a ‘disorderly’ backlash.
If the state officials charged with ensuring public safety effectively circumvented a court order and declared a “State of Emergency” on pretextual grounds in order to shut down the rally, then there’s no reason why the same routine could not be deployed against leftist demonstrators or demonstrators of any other stripe sometime in the near future; government actions create precedents that are enshrined both legally and by custom.
Racially inflammatory speech, sadistic speech, and overtly hateful speech absolutely must be regarded as legally protected speech. If those voicing such speech had their rights violated by state authorities, then it’s imperative that they be given the representation required to seek legal recourse — not because their speech is wonderful in substance or merits amplification, but because the measures used to deny them speech rights will get entrenched into precedent, giving the government greater latitude to restrict speech overall.
The most clear sign that the city’s attempted revocation of the white nationalists’ permit was based on the content of their speech — and would thus constitute prior restraint — was that the city had issued a number of additional permits to counter-protesters, and it was stated by city officials that these counter-protests would attract greater numbers of attendees than the white nationalist rally. Yet, the city made no attempt to revoke the counter-protesters’ permits.
If government officials can claim the power to revoke permits on the grounds of vague “safety concerns,” without even substantiating these concerns, then they have an ever-present tool to simply cancel demonstrations they dislike for any reason at any time. As federal judge Glen E. Conrad wrote in the injunction sought by the ACLU, the city of Charlottesville “cited no source for those concerns and provided no explanation for why the concerns only resulted in adverse action being taken on Kessler’s permit,” rather than on all the permits.
State officials denying or revoking permits on spurious “public safety” grounds has a long history, and the reason the ACLU is so diligent in contesting these speech-hindering tactics — even when the content of the speech is repugnant — is because when state officials get away with hindering speech, precedent gets codified (whether informally or formally) and subsequently the state gains additional tools in its arsenal to suppress speech across the board, including among marginalized communities. Here is the Boston superintendent of police invoking just such grounds (‘public safety’) all the way back in 1921 to deny speech rights to supporters of the anarchist duo Sacco and Vanzetti, as described by The New Republic:
In the more recent past, dubious permit issuance policies were clearly used as a pretextual mechanism by municipal officials who wished to blunt the various iterations of the Occupy movement but needed an extraneous justification to do so. In May 2012, the city of Cleveland provoked the ACLU’s ire when it revoked an Occupy demonstration permit shortly after several demonstrators were arrested on unrelated charges — effectively punishing an entire group for the actions of a few, and preventing speech in the process.
Invoking “public safety” in some fashion was a constant factor as city officials throughout the country justified speech-curtailment measures designed to stymie Occupy. “Health and safety conditions became intolerable,” declared then-New York City Mayor Mike Bloomberg on November 15, 2011, when he authorized a dead-of-night police raid (in defiance of a court order) to oust the flagship Zuccotti Park encampment, resulting in mass arrests.
Another Occupy-offshoot group in Seattle was beset by onerous restrictions which the ACLU argued gave officials arbitrary discretion in their ability to deny permits and thereby hinder the speech of advocates for the homeless. Explaining their representation of the group, the ACLU stated: “In joining the Real Change litigation, the ACLU seeks to ensure the Seattle Parks and Recreation permitting process comports with the First Amendment. All speakers, regardless of their message, need to be treated equally when they apply for permits.”
It’s that very same logic which the ACLU of Virginia sought to bring to the Charlottesville affair: all speakers, regardless of their message, need to be treated equally when they apply for permits. Preserving that equitability is not solely for the benefit of white nationalists; it’s for the benefit of everyone.
The ACLU of Virginia ought to be commended for not wavering in its commitment to the absolute necessity of defending free speech, even in circumstances where it is proving extremely unpopular among certain of its constituencies and/or donors, and even where it results in melodramatic resignations and repudiations by the Governor of Virginia. After all, the Governor’s fidelity to the truth is increasingly questionable, after his post-Charlottesville media tour included multiple pronouncements that the state authorities were somehow “outgunned” by the rally-goers, which by every rational account couldn’t possibly be true.
Simply put, the ACLU prevailed on behalf of its client because the City of Charlottesville could not provide a rationale for canceling the rally that did not hinge on the speech-content of the rally-goers. By ensuring that free speech was upheld, the ACLU didn’t enable violence. Violence prevention is the purview of police and the politicians who command the police; any “blame” should therefore lie with them.
