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Charlottesville and the first amendment: a tale of two parks

By Laurence Maher - posted Tuesday, 5 September 2017


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.

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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.

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About the Author

L W Maher is a Melbourne barrister with a special interest in defamation and other free speech-related disputes. He has written extensively on Australian Cold War legal history.

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