A federal judge on Friday granted an injunction allowing the far-right Unite the Right rally to be held in Emancipation Park in the shadow of the statue of Confederate Gen. Robert E. Lee.
U.S. District Court Judge Glen E. Conrad made the decision late Friday after a two-hour debate that followed a 30-minute meeting between the judge and attorneys for rally organizer Jason Kessler, the city of Charlottesville and downtown merchants.
Conrad said he granted the injunction because testimony indicated that Kessler could successfully prove that the city revoked his original permit based on his ideas.
The injunction was filed early Friday by civil rights organizations American Civil Liberties Union of Virginia and the Albemarle County-based Rutherford Institute.
“Based on the current record, the court concludes that Kessler has shown that he will likely prove that the decision to revoke his permit was based on the content of his speech,” Conrad wrote. “Kessler’s assertion in this regard is supported by the fact that the city solely revoked his permit but left in place the permits issued to counter-protestors.”
Conrad said information presented at the hearing indicated the city’s decision was “based on the content of his speech” rather than public safety factors.
“This conclusion is bolstered by other evidence, including communications on social media indicating that members of City Council oppose Kessler’s political viewpoint,” Conrad wrote. “At this stage of the proceedings, the evidence cited by Kessler supports the conclusion that the city’s decision constitutes a content-based restriction of speech.”
Kessler, in a video posted to his Twitter account, thanked the civil rights groups and attorney-activist Kyle Bristow.
“I want to thank — from the bottom of my heart and from all the attendees of the Unite the Right rally, the ACLU, Rutherford Institute and the great, the legendary Kyle Bristow — for working on this case for us,” he said.
The decision came after civil rights attorneys representing Kessler’s effort to hold the rally in Emancipation Park argued that tweets and public statements by city councilors show that the city’s attempt to move the rally to McIntire Park was in response to the rally’s content rather than public safety.
The “alt-right” rally is expected to be attended by prominent figures in white nationalist and separatist groups and others on the far right of the political spectrum. The so-called alt-right is a white nationalist movement that is an offshoot of conservatism that mixes mixing racist and populist elements.
They also noted that the city moved only the Unite the Right rally and not rallies planned in Justice and McGuffey parks by organizations opposed to Kessler’s beliefs.
City Attorney S. Craig Brown disagreed, saying the statements were simply councilors exercising their First Amendment rights. He said the City Manager Maurice Jones moved the rally strictly for safety precautions.
He also argued that the expected 2,000 counter-protesters coming to town to oppose the Unite the Right rally were not part of the two rallies planned for the downtown parks, but they would follow Kessler’s rally wherever it is held.
Attorneys for the ACLU and The Rutherford Institute filed the injunction on behalf of Kessler. The city on Monday approved a permit for the Unite the Right rally, but only if it was held in McIntire Park.
Brown said the city moved the rally to McIntire Park because it can more easily be secured. The city estimates that 1,000 or more people are expected to be at the rally and that they will be met by about 2,000 counter-protesters.
“The 2,000 who are coming are coming for one purpose and one purpose only, and that’s to protest and counter-demonstrate against Mr. Kessler,” Brown told the judge. “We firmly believe there is a threat of violence if it takes place in Emancipation Park. We firmly believe the same threat of violence exists if it’s moved to McIntire Park. The key to preventing violence is to keep the sides apart and it is easier to keep the sides separate at McIntire because it is bigger.”
Brown said that Kessler’s free speech rights are not compromised by moving to a larger park because Kessler can espouse the same content at the same time for the same duration. The public safety would be better served by the added security to residents and businesses, he argued.
But ACLU attorney Victor M. Glasberg said the Emancipation Park location is central to Kessler’s rally because it is home to the Lee statue and the controversy that has surrounded the city’s decision to remove and rename the park. It was until recently called Lee Park. McIntire Park, meanwhile, is named for the philanthropist who donated the Lee Park land and statue.
Glasberg said the city was aware of the changing situation as more protesters for both sides signed on to demonstrate, but chose to wait until Aug. 7 to change the venue.
“The city sat on its hands and let the situation get to the point that a large number of people are going to converge downtown,” he said. “City officials have repeatedly taken positions opposite to Mr. Kessler’s opinion. The decision to change the permit only occurred after the opposition developed in the community and the city.”
In his decision, Conrad noted that even with a changed venue, police would still have to deal with protesters in Emancipation Park.
“Supporters of Kessler are likely to still appear at the park, even if the location of Kessler’s demonstration is moved elsewhere,” the judge wrote. “Thus, a change in the location of the demonstration would not eliminate the need for members of the city’s law enforcement, fire and emergency medical services personnel to appear at Emancipation Park. Instead, it would necessitate having personnel present at two locations in the city.”
ACLU officials said they were pleased that Kessler’s free speech rights were preserved, but urged police and protesters to use restraint.
“We are grateful that the court recognized that the First Amendment applies equally to everyone, regardless of their views,” said Claire Gastañaga, ACLU of Virginia executive director.
“We hope that the city will focus tomorrow on managing the expected crowds using de-escalation tactics and flexibility, and avoid the kind of over-militarized response that was mounted on July 8,” she said. “We encourage everyone participating to commit to nonviolence and peaceful protest. We will be there to observe and document police practices as we were on July 8 and at other rallies and protests across Virginia since January and before.”