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The many causes of the Charlottesville violence

By Laurence Maher - posted Wednesday, 24 January 2018


Last December, the 206-page "Final Report of the Independent Review of the 2017 Protest Events in Charlottesville, Virginia" was released.

On 13/14 May, 8 July and 12 August 2017, protesters and counter-protesters engaged in violent clashes prompted by the 3-2 vote of the Council of the City of Charlottesville on 6 February 2017 to remove the equestrian monument to the commander of the military forces of the secessionist Confederate States of America General Robert E Lee (1807-1870) in the City's Emancipation Park (formerly Lee Park), and a statue of Lee's most senior commander General Thomas Jonathan "Stonewall" Jackson (1824-1863) in LibertyPark (formerly Jackson Park).

On the last occasion, a young woman pedestrian was killed and many other pedestrians were injured when struck by a motor vehicle intentionally driven into a crowd of counter protesters.

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In March 2016, the Vice-Mayor of Charlottesville had held a press conference to express his distaste for the Lee statue and urged the City to join the broader protest movement about Confederate monuments in the South by removing the Lee and Jackson statues. The Council assembled a Blue Ribbon Commission on Race, Memorials, and Public Spaces, with the objective of providing City Council with options for "telling the full story of Charlottesville's history of race" and "changing the City's narrative through [its] public spaces."

It reported in December 2016. It did not affirmatively recommend relocating the statues or keeping them and adding "context". Instead, it sent both options to the Council for deliberation and recommended renaming the two parks.

A group of citizens opposed to the Council's decision sued the City in the Charlottesville Circuit Court contending that removal of the statutes contravened Virginia state laws protecting Civil War monuments. On 2 May 2017, a judge granted the plaintiffs a preliminary order that the public interest required preservation of the Lee statue for a minimum of six months. However, he authorized the City to rename Lee Park as Emancipation Park and to continue planning for the ultimate relocation of the Lee statue. That proceeding remains pending.

Soon after the violence on 12 August, the City of Charlottesville engaged law firm Hunton & Williams to conductan inquiry into the 2017 disturbances. The inquiry was led by Timothy J Heaphya former United States Attorney for the Western District of Virginia.

There is much to be said about the Report. Here are some passing observations:

First, by not dissimilar Australian standards, the reality and appearance of the independence of the inquiry was different than, for example, if the inquiry had been established externally, say, by the Virginia General Assembly or by the US Government. There are aspects of the report, including some of its nomenclature which might be taken by some readers to bespeak a sympathy on the part of the Report's authors for removal of the controversial statues.

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Nevertheless, there can be little doubt that, in the limited time available to them, Mr Heaphy and his team laboured long and hard and thoroughly to assemble as much of the truth as they could about the disturbances in Charlottesville on each of those four days. The firm's investigators are, not surprisingly, very critical of aspects of the action (and inaction) of some of the councillors and City officials.

Secondly, the report's starting point is an emphatic reminder that the First Amendment to the United States Constitution guarantees all citizens the right to express their views in public places – peacefully – however objectionable those views may be.

For example, just as the National Socialist Party members were entitled to spruik their ideas peacefully in Skokie, Illinois in 1978, as were the Ku Klux Klan members in Charlottesville who had sought to do so on 8 July 2017. And a federal judge had upheld the First Amendment claims of the main organizer of the proposed 12 August rally when the City cancelled his protest permit.

Law enforcement authorities are responsible for protecting the peaceful exercise of First Amendment rights and the safety of all participants in these events (protesters and counter-protesters alike) as well as ensuring public safety especially when the content of speech can provoke strong, sometimes violent, reactions.

Next, the reality of the three episodes in Charlottesville last year is that there is an organized element on the so-called "progressive"/"left wing" side determined to engage in armed resistance to silence those who dare to express their "unacceptable" opinions in public.

Thirdly, City officials, including law enforcement agencies, failed to discharge their legal obligations to protect public safety and facilitate free expression and thereby endangered public safety. In some measure, that failure was attributable to the fact that the Council had allowed its partisan desire to remove the statues and rename the two parks to affect its decision-making.

The City was prevented by State law from banning attendees at the protests from openly carrying firearms, but was not impeded from enforcing restrictions on the possession or use of other weapons such as sticks, bats, shields, clubs, or poles to protect public safety. In the report's assessment:

Weapons carried by Alt-Right demonstrators and those there to oppose them increased both the quantum and seriousness of violence on August 12. If the individuals engaged in those acts of violence had been unarmed, there would have been fewer and less dangerous encounters. Accordingly, the City should have prohibited the possession of these items.(my underlining)

There were more failures than successes in the City's planning and execution of protective measures which contributed to a chaotic series of events that led to violence and death which, in turn, significantly undermined the Charlottesville community's confidence in its government's ability to protect public safety.

The only way to deal with the protesters and counter-protesters who were in or came to Charlottesville with the specific intent to commit acts of violence was to ensure they were completely separated. The law enforcement plan that was implemented was woefully inadequate in this area, resulting in dangerous proximity between opposing groups and, thus, numerous acts of violence.

Fourthly, Heaphy describes the resistance to his requests for co-operation, some of which were denied due to pending litigation. Others were rejected due to scepticism about the independence of the review and potential uses of the information it collected.

One example of lack of co-operation, notable for its oddity, was the response of various organizations and individuals engaged in counter-protest activities which mirrored their approach to the protest events themselves. For example, when the Charlottesville Police Department detectives attempted to obtain information from various groups who had openly promoted resistance to the 8 July event, their efforts were criticized as "an intimidation tactic intended to curtail leftist speech and expressive conduct".

Finally, if a Google search is any guide, the Charlottesville report has been ignored by the Australian media. This is a pity because its comprehensive examination of the events of 2016/2017 is an instructive case study of the role of open (that is to say "divisive") debate (rather than unanimous polite "conversation") in democratic societies and the determination of forces on what were once called the "Left" and the "Right" to resort to armed resistance because they cannot tolerate differences of opinion.

The ABC-TV Foreign Correspondent programme on 15 January dealt in part with the events in Charlottesville on 12 August. If the ABC producers were aware of the Hunton & Williams report (and they should have been), they chose not to refer to it explicitly in the programme.

It is not for this outsider to suggest to anyone how to think about the messages (whatever they may be) conveyed by the two commemorative statues in Charlottesville. One assessment of their historic significance is embodied in their respective citations in the US National Register of Historic Places.

Another way of stressing the importance of how opinions on deeply controversial events can (and necessarily will) differ markedly in a free and open society is to be found in the US Supreme Court's 5:4 decision in Walker v Texas Division, Sons of Confederate Veterans(2015). The dissenting opinion authored by Justice Alito (with whom Chief Justice Roberts and Justices Scalia and Kennedy agreed) held that the State of Texas had engaged in viewpoint discrimination contrary to the First Amendment when it denied an application for a specialty motor vehicle licence plate which included the Confederate battle flag because many members of the public would find the flag "offensive".

Justice Alito underscored the importance of the clash of ideas and opinions in a democracy when he remarked that the Sons of Confederate Veterans saw the plates as honouring soldiers who served with bravery and honour in the past. Or is that an opinion which nowadays no fair-minded person could possibly hold or be allowed to express in public?

For the time being, visitors to the former Lee Park will be presented with the spectacle of a pedestal supporting a statue wrapped in a tarpaulin (likened by some observers to an over-sized garbage bin bag).

The City of Charlottesville and several local businesses and community organizations commenced a case in the Charlottesville Circuit Court on 17 October 2017 against militia-like organizations and eleven individuals seeking injunctions and declarations on the basis that the defendants' activities were those of private armies which threatened to displace existing civil power. That proceeding is also pending.

It is to be hoped that the extremists on both sides of the statues controversy can be persuaded that their commitment to violence is intolerable.

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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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