Engl 310 Workshop: Free speech in Charlottesville

An unofficial outline of events:

Jason Kessler organizes a rally called “Unite the Right” to protest the removal of a statue of Robert E. Lee from Lee Park, recently renamed by the city as Emancipation Park.

Kessler applies for and is granted a permit to hold a demonstration for about 400 people on Aug. 12, 2017, in the park.

On Aug. 7, the City modifies the permit, moving the demonstration to a different park, where the city claims it will be better able to control crowds, separate the protestors from counter-protestors, and keep the peace at what is expected to be a confrontational event. The new site also has parking. Many of the Kessler group indicate they will show up armed since Virginia is an open-carry state. They do in fact show up armed.

On Aug. 10, the Virginia branch of the ACLU files a motion with Federal District Court for an injunction preventing the city from moving the demonstration from its originally-approved site. The motion appeals to the First Amendment guaranty of the right to assemble and the right to free speech; and to the 14th Amendment, which applies the First Amendment to the states as well as to the federal government (this is called "incorporation").

The same day, the city files a counter-motion opposing the Kessler/ACLU-VA motion for an injunction, outlining its reasons and insisting that they are withing the scope of the First Amendment.

On Aug. 11, the Charlottesville Division of the Federal District Court for the Western District of Virginia grants the Kessler/ACLU-VA injunction against the city.

That night torch-bearing protestors march on the University of Virginia campus, surround and harass a group of counter demonstrators and others caught up in the fray, and exhibit threatening and abusive verbal and physical behavior.

On Aug. 12 the demonstration and counter-protests begin, hours earlier than called for in the original permit. Police do not separate the two groups, as has become customary in such situations. They seem outnumbered as well as unwilling, unable, and unprepared to intervene to prevent violent interactions. Sporadic incidents of violence ensue; protestors surround a local synagogue and scream antisemitic threats; a black man is beaten by protestors; shortly after 11 a.m., the city decides to end the demonstration early because it poses a threat to public safety. It orders both sides to leave the park.

Unite the Right demonstrators turn violent as they leave the park; the Neo-Nazi, Klan, and other extreme right-wing groups run through downtown wreaking havoc. It takes the police well over an hour to regain control of downtown.

One demonstrator drives his car into a crowd of counter-protestors, killing one woman and injuring 19 others before fleeing the scene. He is subsequently arrested.

Two state police assigned to crowd surveillance are killed when their helicopter malfunctions and crashes

Your assignment:

All students will read the three documents relevant to the case (see links below).

The class will divide into three groups: six students will represent the ACLU-VA; six will represent the City of Charlottesville; and six will form a panel of judges ruling on the injunction motion.

The ACLU-VA files a Motion for an injunction to reinstate the permit: Jason Kessler v. City of Charlottesville

The City of Charlottesville response opposing the ACLU-VA motion

Opinion of the Federal District Court for the Western District of Virginia granting the injunction

On Wednesday, representatives from each group will discuss the case from your assigned point of view. In order for your individual comments to be effective, you must be familiar with the other side’s position, and with the ultimate decision of the court. In our discussion, we will attempt to isolate and examine the main free-speech issues raised by Charlottesville, including these issues:

  • Does the First Amendment provide absolute protection for all speech?

  • Does the Second Amendment provide absolute protection for the right to keep and bear arms?

  • At what point does the right to speak conflict with
    • the need to maintain public order
    • the need to protect public safety
    • the right not to be harassed or exposed to hate speech

  • At what point does the right to keep and bear arms conflict with
    • the right not to feel threatened as one goes about one’s business
    • the right to disagree with someone who is carrying a gun

  • The First and Second Amendments are presumed to be both equally important and mutually consistent. Indeed, no one part of the Constitution is more important, more legal, or more authoritative, than any other. But what are we to do when these two Amendments clash, as they did in Charlottesville, and as they are likely to do elsewhere as concealed-carry and open-carry laws spread across the nation?

  • What happens when the Second Amendment chills free speech? At demonstrations? In places of public assembly? In class?

Bonus reading: 1934 ACLU pamphlet about defending the free speech rights of American Nazis. Would you modify the ACLU's argument

a. in light of the events of World War II?

b. to fit current circumstances?

For the ACLU:



For the City of Charlottesville:


For the Court: