Decision at high noon

Jason Kessler says he will hold his Unite the Right rally in Emancipation Park regardless of the city's decision to approve his permit for McIntire Park. Photo by Eze Amos Jason Kessler says he will hold his Unite the Right rally in Emancipation Park regardless of the city’s decision to approve his permit for McIntire Park. Photo by Eze Amos

The Rutherford Institute and the ACLU of Virginia have given the city of Charlottesville until 12pm today to respond to their letter demanding city leaders allow Jason Kessler to hold his August 12 Unite the Right rally in Emancipation Park.

When city manager Maurice Jones announced August 7 that he approved Kessler’s event permit, but only if he holds it in McIntire Park, the white rights advocate and organizer of the rally threatened a lawsuit, said his freedom of speech was infringed and announced that the show would go on at Emancipation instead of McIntire park.

The Rutherford Institute and the ACLU had his back.

In a joint letter addressed to Jones and all five city councilors, the free speech defenders gave five reasons why Kessler should be able to hold his rally in its original location.

“Opposition can be no basis for government action that would suppress the First Amendment rights of demonstrators, no matter how distasteful those views may be,” the letter says, and adds that a last-minute relocation doesn’t give the demonstrators enough time to effectively plan for the move.

And because the city’s main reason for moving the rally to McIntire Park was to accommodate large crowds, the Rutherford Institute and ACLU say the city must provide evidence to support its attendance estimate. City leaders have forecast that “many thousands” will descend on Charlottesville this Saturday, while Kessler’s permit is for only 400 demonstrators.

“If the city is justifying its relocation of the rally elsewhere based on the presence of counter demonstrators, that constitutes an unconstitutional ‘heckler’s’ veto,’” the letter says, and makes its final point that those governing Charlottesville must act in accordance with the law, no matter how reprehensible that may be to members of the community.

Both organizations have a long history of supporting groups with unpopular speech.

Rutherford Institute founder John Whitehead coached Margie Phelps of the Westboro Baptist Church, best known for showing up at the funerals of American soldiers with signs saying, “God hates fags,” ahead of the 2011 Supreme Court decision that public hate speech can’t be the basis of liability for a tort of emotional distress, even if it’s offensive.

And the ACLU represented Ku Klux Klan member Barry Black, who was arrested after burning a cross on a private citizen’s Carroll County farm in 1999. The case also made its way to the Supreme Court, which ruled in April 2003 that cross-burning, when not used as a direct threat, is protected by the Constitution.

Correction 2:49pm: There are five members of City Council.

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