Independent Investigation of ‘Unite the Right’ Rally Finds That Charlottesville Failed to Protect Free Speech, Populace

color photo of a statue of Gen. Robert E. Lee astride his horse, Traveler
The statue of Robert E. Lee in Emancipation Park (formerly Lee Park) in Charlottesville, Virginia (BSABarnowl via Wikimedia Commons)
A law firm's independent report on the August 12 "Unite the Right" rally in Charlottesville, Virginia, heaps blame on local politicians and police for the violence that ensued.

Attempting to squelch the free-speech rights of others can prove disastrous. Just ask the City of Charlottesville, Virginia.

A 207-page independent report, commissioned by the Charlottesville City Council and completed on November 24, reveals the march of folly that preceded the August 12 “Unite the Right” rally in that city and outlines how the day’s tragedy might have been avoided.

The document offers two valuable lessons: First, officials in the United States should respect and protect the First Amendment rights of all; and second, when dealing with protesters and counter-protesters who despise one another, police must — in the words of the Offspring’s punk-pop hit “Come Out and Play” — “keep ’em separated.”

The Virginia-based law firm Hunton & Williams assembled the report, entitled, “Independent Review of the 2017 Protest Events in Charlottesville, Virginia.”

Conclude the authors, led by Timothy Heaphy, former U.S. Attorney for the Western District of Virginia:

[T]he City of Charlottesville protected neither free expression nor public safety on August 12. The City was unable to protect the right of free expression and facilitate the permit holder’s offensive speech. This represents a failure of one of government’s core functions — the protection of fundamental rights. Law enforcement also failed to maintain order and protect citizens from harm, injury, and death. Charlottesville preserved neither of those principles on August 12, which has led to deep distrust of government within this community.

The city’s dual blunders led to a day of chaos and rage, filled with violent clashes between far-right demonstrators and those who opposed them, the latter group comprising anti-fascist demonstrators (the so-called antifa), clergy, students, and ordinary citizens.

The uproar culminated in the death of 32-year-old Charlottesville resident Heather Heyer when James Alex Fields, Jr., a pro-fascist demonstrator, allegedly plowed his Dodge Charger into a line of cars on a street filled with counter-demonstrators, killing Heyer and injuring nineteen.

A Failure to Heed the First Amendment

The path to this tragedy was an uneven one.

Heaphy’s report details how, on June 12, the city first granted a permit to the rally’s organizer, Charlottesville resident and white nationalist Jason Kessler, to assemble in Emancipation Park, formerly known as Lee Park and home to a prominent statue of Confederate Civil War general Robert E. Lee.

Kessler had been active in resisting the city’s plan to remove the statue. That plan has been on hold since May, when a Virginia judge issued an injunction pending the resolution of a lawsuit challenging the statue’s removal.

Kessler had organized “pro-white” demonstrations in the past, but this one would be different.

The Lee statue had become an icon of withering white heritage to some; to others it represented overt racism.

For Kessler, it was a rallying cry.

The rally itself became an open forum for the far right, drawing a range of speakers and participants from the racist fringe, including white nationalist Richard A. Spencer, alt-right talk-show host Christopher Cantwell, and former Ku Klux Klan grand wizard David Duke, among many others.

Cover page of the independent report on the 2017 Charlottesville protests, showing an African-American police officer standing in front of a barricade, behind which a crowd of white nationalist demonstrators has gathered
An independent investigation by Hunton & Williams found that police employed a bizarre strategy: Let demonstrators brawl, then declare an unlawful assembly and disperse them (click image to view report)

As the date drew near, with anxiety about the rally building among residents and local business owners, the mayor and city council pressed city administrators to cancel Kessler’s permit and relocate it to McIntire Park, a larger venue. There, they believed, police might be better able to forestall a confrontation between Kessler’s crowd and the anticipated throng of counter-protesters.

“In the face of strong community opposition to the Unite The Right rally, City leaders wanted to deny Kessler’s permit application,” reads the report. “City Councilors responded to this pressure by injecting themselves into the operational details of the City’s response to this event — a function typically reserved for City staff.”

Though both the city manager and the chief of police opposed moving the gathering, they acceded after the council voted 4-1 to change the venue.

It was all for naught: With assistance from the  ACLU of Virginia, Kessler sued in federal court, where U.S. District Judge Glen Conrad ruled that Charlottesville had treated him differently because of the content of his speech, in violation of the First Amendment.

In large part, the judge based his ruling on the fact that Charlottesville officials had granted permits to counter-demonstrators with no strings attached, even as it played tug of war with Kessler.

Bad Timing, Bad Planning, Bad Judgment

The flipflop hindered the city in planning for crowd control. But the report cites several reasons for Charlottesville’s August 12 debacle: poor training; the lack of a unified command; and the fact that the Charlotte Police Department (CPD) and the Virginia State Police (VSP) were operating on separate radio channels and had divergent operational plans for the rally.

Most damning of all: They say the CPD’s strategy was doomed from the get-go.

“Rather than engage the crowd and prevent fights, the CPD plan was to declare the event unlawful and disperse the crowd,” the report reads. “The Operational Plan outlined the steps by which an unlawful assembly could be declared.”

According to the report, when brawling broke out on the morning of August 12, “Chief [Al] Thomas’s response…was disappointingly passive. [Two of Thomas’s subordinates] told us that upon the first signs of open violence on Market Street, Chief Thomas said, ‘Let them fight, it will make it easier to declare an unlawful assembly.'”

Thomas denied saying any such thing, but there’s no doubting the video evidence showing the laissez-faire approach of CPD and VSP officers as opposing groups of demonstrators battled one another with fists, sticks, bottles, and pepper spray.

“VSP directed its officers to remain behind barricades rather than risk injury responding to conflicts between protesters and counter-protesters,” states the report. “CPD commanders similarly instructed their officers not to intervene in all but the most serious physical confrontations.”

When the CPD finally declared an unlawful assembly, the VSP riot squad cleared the park. In doing so, they drove the motley force of armed neo-fascists directly into the counter-demonstrators who’d assembled around the park, which led to more violence.

Among other incidents, white supremacists beat an African-American man and a Ku Klux Klan leader fired a handgun at a black man who was using an aerosol can as a flamethrower.

The report also notes that the CPD assigned an officer to the intersection where Heather Heyer was killed — but she was a school-resource officer, unused to dealing with crowds. When she feared for her safety, she was allowed to leave her post. CPD did not replace her.

That left a lone sawhorse barricade blocking the street, which was later “moved by unknown persons.”

Same Time Next Year?

The latest news out of Charlottesville is that James Kessler has applied for a permit for the same date in 2018, to mark the anniversary of his “Unite the Right” hot mess.

The city denied him a permit outright.

He’s threatening to sue, of course, but Charlottesville might prevail this time. Unlike the first go-round, when the city granted the counter-protestors’ request for permits while giving Kessler the run-around, Charlottesville administrators have also rejected permit applications from counter-protest groups, a potential defense against a claim of a First Amendment violation.

Click the link below to read the full Hunton & Williams report:

“Independent Review of the 2017 Protest Events in Charlottesville, Virginia”

Click the link below to read the ACLU of Virginia’s summary of Kessler v. Charlottesville, including documents related to the suit and Judge Glen Conrad’s ruling in the case:

“Kessler v. Charlottesville”

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