A Grim Anniversary: Still Learning From Charlottesville

By Jesus Rodriguez

Few events in recent history have rattled the United States quite like last year’s Unite the Right rally in Charlottesville, Virginia, a clash of gun-toting white supremacists, counterprotesters, and an unprepared police force. Heather Heyer, a 32-year-old paralegal, died after self-avowed neo-Nazi James Alex Fields Jr. drove his car into a crowd of counterprotesters, injuring 19 others as well. The mayhem provided a haunting coda to the first summer of the Trump administration, as Americans everywhere grappled with how to resolve the deep-seated prejudices pervading society that now festered in the open.

It was also the occasion, as many remember, for President Donald Trump’s infamous comment that there were “some very fine people on both sides,” which led to questions about whose support the president had and what base he was trying to solidify.

A first-anniversary demonstration is planned for Washington, D.C., on Aug. 11 to 12, 2018. The National Park Service (NPS) has approved an application — requested by Unite the Right organizer Jason Kessler — for a rally permit in Lafayette Park, near the White House. It has not yet been issued, but Kessler is in talks with the NPS about the details.

One year on, what lessons can be drawn from last year’s protests? Looking back at the rally, with help from last fall’s Free Speech Project forum titled “The Shadow of Charlottesville: Free Speech at a Crossroads,” some answers begin to emerge.

First, it will be a challenge to prove that the rally would not cause harm to the public, an essential requirement of First Amendment law set by years of legal precedent. At our forum, U.S. District Judge Paula Xinis said the court system must “get away from generalities and leads and talk about facts.” Xinis added it had been difficult to pinpoint the facts last year — for example, the court in Charlottesville was not entirely convinced that paramilitary groups would come to the rally and incite violence. This time, the court has perspective on what happens when the First and Second Amendments mix; to win in court, organizers would have to provide bona fide evidence that their rally is unlikely to turn violent.

In addition to the D.C. event, Kessler attempted to request a permit from the city of Charlottesville to hold a sister “white civil rights” rally there. But the city denied that permit, claiming that it would threaten the public safety and be too costly. A legal challenge by Kessler in federal court ensued.

Kessler argued that the threat to public safety in Charlottesville would not be a concern, because he had struck an agreement with the city that he would discourage groups of people from bringing weapons or blunt objects to the anniversary event. But, according to The Washington Post, the city was skeptical that Kessler would or could adhere to such an agreement, writing in court documents that “the Plaintiff will state peaceful intentions in public while in private encouraging and enticing attendees to engage in violence.”

Nonetheless, Kessler has publicly said he repudiates armed groups — such as the neo-Nazi organization Atomwaffen — and will not welcome them to his proposed D.C. march. District of Columbia law prohibits the open bearing of arms and interdicts any firearms within 1,000 feet of protests, in public transportation, and near the White House. This might change the calculus if the negotiations over the permit for the D.C. event end up in court.

Second, law enforcement could draw from last year’s experience to amp up preparedness. There is no telling how heavily armed the groups might be, but underestimating this possibility could have severe consequences for public safety and national security. As Timothy Longo, the former Charlottesville chief of police, said at last fall’s forum, failing to maintain order sullies trust with the community.

This point is especially salient when it comes to communities of color or members of historically marginalized groups. In maintaining safety while also guaranteeing the right of the people peaceably to assemble, police may continue a history of unequal treatment toward demonstrators of color, who could be among the counterprotesters. For example, civil rights activist DeRay Mckesson has pointed out that the white nationalists in Charlottesville were daring enough to push against police lines. If Black Lives Matter activists had done the same thing during the Ferguson, Missouri protests in the aftermath of the shooting death of Michael Brown by police in 2014, Mckesson said, “we would have been shot.”

Finally, this grim anniversary and the potential for a sequel to Charlottesville might be a good opportunity to consider a question that has puzzled the courts for years: whether the First Amendment is immutable or organic. Comparing the judicial rulings and arguments between this year and last, it is plain to see that violence is now frequently and intimately associated with the far-right, which might tip the scales against allowing this kind of virulent speech.

That has seemingly convinced some people to give the far-right movement no quarter. On July 20, a Virginia judge ordered one of the self-avowed white nationalists, Christopher Cantwell, exiled from the state for five years after he pleaded guilty to two counts of assault and battery against an anti-racist protester. Banishment seems to be a novel punitive measure against white supremacists, and its legal ramifications are not fully understood. Could jurisdictions where white-nationalist events are planned proactively declare an organizer persona non grata?

Hate, racism, and white supremacy are hardly new to the United States, and this is not the first time in recent years that the courts have been presented with these issues. Modern-day activists, legal experts, and judges alike may benefit from looking closely at how circumstances have evolved in light of expanded legal access to weapons today.

History does not repeat itself alone; individuals make it happen. In this case, they would be well-served by learning from the recent past.

Jesus Rodriguez is a member of the Class of 2019 in the School of Foreign Service at Georgetown University, studying international politics. A first-generation student from Orlando, Florida, Jesus has served as an editor and writer for The Hoya and as an editorial intern for the Council on Foreign Relations.