Despite the fact that he was one of the central actors in the peaceful events in the week immediately preceding the street violence in Charlottesville, Virginia on 12 August 2017, it seems likely that the name of Judge Glen E Conrad, of the United States District Court for the Western District of Virginia, Charlottesville Division, is known to very few Australians who have followed the Australian media coverage of the Charlottesville controversy some of which has aped the outraged tone of segments of the US media. This is unfortunate because for anyone wanting to understand the controversy in order to arrive at an informed opinion about it, one way or another, the judge's role will endure as an illuminating one.
On 11 August after an urgent hearing, Judge Conrad announced his decision in Kessler v City of Charlottesville granting the plaintiff Jason Kessler a preliminary injunction forbidding the City of Charlottesville from revoking or modifying a permit which it granted him on 13 June 2017. Kessler was proposing to hold a demonstration in the city's Emancipation Park on 12 August 2017 to voice his opposition to the renaming of the park (formerly known as Lee Park) and to the city's plans to remove from the park an equestrian monument to the commander of the military forces of the secessionist Confederate States of America, General Robert E Lee (1807-1870). Lee Park had been donated to the city in 1917 by a local philanthropist, Paul Goodloe McIntire (1860-1952), for the display of the Lee sculpture which was presented to the city in 1924. It was one of four sculptures added to the US National Register of Historic Places in 1997.
In the weeks following the issue of Kessler's permit, the city granted organizations which opposed Kessler's message permits to conduct counter-protests in other public parks a few blocks away from Emancipation Park.
Then, on 7 August, the city notified Kessler by letter that it was revoking his permit and modifying it to require that his demonstration take place at the very much larger McIntire Park (in part, also donated by Paul Goodloe McIntire) a mile or more away from Emancipation Park. The city's stated concern for the safety of the demonstrators and the public was influenced by what had occurred on 8 July when a group of about 50 persons attended a Ku Klux Klan rally in Charlottesville as did 1,000 counter-protesters who had been dispersed by the city with tear gas.
However, the city took no action to modify or revoke the permits issued to the counter-protesters for demonstrations planned within blocks of Emancipation Park. The Charlottesville controversy viewed in the setting of Judge Conrad's short memorandum opinion - in this foreigner's assessment, a model of clarity and brevity - and the accompanying court documents is a useful case study in two central aspects of the jurisprudence of the free speech clause of the First Amendment to the US Constitution: "Congress shall make no law . . . abridging the freedom of speech. . ."
First, regarding violence, it is enough to say that speech inciting violence is not protected; nor can the prospect of a heckler threatening or using violence to suppress protected speech be used as a bar to enforcement of the right.
Secondly, the gist of Judge Conrad's decision is to be found in the following excerpt:
Under the First Amendment, made applicable to the States by the Fourteenth Amendment a municipal government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.
It is chiefly that constitutive principle which bars the enactment in the US of the puritanical "hate speech" censorship laws of the kind that exist in Australia to confer a privilege from public criticism on particular categories of ideas and subject matter.
However, having considered the evidence including communications on social media indicating that city council members opposed Kessler's viewpoint, Judge Conrad found that Kessler was likely to prove at trial that there was disparity in treatment between the two groups with opposing views and that "the decision to revoke his permit was based on the content of his speech." The city will have to live with that damning finding. It said it would abide Judge Conrad's decision, but continued to insist that its decision had nothing to do with the content of the demonstrators' speech.
Soon after the appalling breakdown in public order which occurred on 12 August during the course of which one person died when a motor vehicle was driven into a crowd, the city police department called for the public to assist it in conducting an investigation into the violence. On 25 August, the city announced that it had hired a former US Attorney for the Western District of Virginia to lead an independent external review of the city's response the rallies which had occurred 8 July and 12 August (and at another rally on 13 May). There is no substitute for painstaking investigation. The public interest and history demand no less. The instigators of the violence, the root causes of both the breakdown in city law enforcement and of any denial of Kessler's adjudicated constitutional right need to be publicly identified.
No reader of the court material should be surprised that the judge found that changing the venue for Kessler's demonstration would not avoid a clash of ideologies or prevent a confrontation between the two opposed groups. Judge Conrad also found that the city's law enforcement, fire, and emergency medical services personnel would still need to appear at Emancipation Park.
The unwise rush to judgment atmosphere which set in before the disturbances had abated is evident in the air of certainty displayed by some persons in attributing blame for the violence. One example is the contribution by the Governor of Virginia, himself a lawyer. In response to claims that the Charlottesville violence was due, in part, to inadequate law enforcement measures, he blamed Judge Conrad for the violence stating that he was "angry" with the judge because the rally was not moved to McIntire Park: "We have to do a better job working with the judiciary. They need to listen to local city officials."
In calmer times perhaps, the Governor might reconsider that wrong-headed and menacing categorical statement. On 18 August, the Governor issued an Executive Order temporarily halting the issue of permits and prohibiting demonstrations at the Lee Monument in Richmond, Virginia (also on the National Register) until new emergency regulations have been approved. Although he acknowledged that first amendment rights required protection, he had already stated that Confederate statues should be taken down and relocated to museums or "more appropriate settings". It seems unlikely that the underlying difference of public opinion in that regard will disappear.
The Mayor of Charlottesville had also been quick to scapegoat Judge Conrad. The first amendment he says is badly antiquated. There has been "dis-inclusion" aplenty inside the city council in the blame game. On 30 August, the Mayor issued a grovelling apology for impugning the reputation of the City Manager and the Chief of Police.
The American Civil Liberties Union, which for almost a century has been at the forefront of the struggle to secure the first amendment rights of all Americans, has been stung by the criticism levelled at it for bringing Kessler's case before Judge Conrad. The ACLU withstood a barrage of criticism when it acted for the National Socialist Party of America in Smith v Collin (1978) – the Skokie, Illinois street march case. Now, however, there are signs that, as a result of the Charlottesville episode, the ACLU will become subject matter-selective and thus less inclined to fight for the rights of the most hated contemporarydissenters. This will not advance the cause of individual liberty and equality.