Why ACLU-VA Represented Kessler, the White Supremacist Rally Leader

As a member of the board of the American Civil Liberties Union of Virginia I am concerned that while some people understand why we represented Jason Kessler, who was the leader of the white supremacist rally in Charlottesville, others do not understand. To explain our position I offer the following statement from our Executive Director and the President of the Board:

Many of us have been asking ourselves hard questions following the recent, tragic events in Charlottesville.

At this difficult and painful time, some supporters have expressed concern with our decision to represent Jason Kessler, a white supremacist, in his lawsuit against the City of Charlottesville. The lawsuit challenged on First Amendment grounds the City’s decision to revoke a permit for a demonstration on August 12 at Emancipation Park near the Downtown Mall. Disagreement with that decision is understandable. What Mr. Kessler says or believes is plainly indefensible. White supremacy is vile and disgusting.

The decision we made to represent Mr. Kessler (individually, not as a representative of any group, and with approval of our Board of Directors) wasn’t an affirmation of his views any more than our advocacy for due process rights for sex offenders is an endorsement of child abuse, our advocacy for freedom of religion signals an acceptance that anyone has the freedom to use religion as a justification for discrimination, or our opposition to the death penalty indicates support for capital murder.

What we decided to defend in the context and with the facts available at that time were important principles of constitutional government.

The First Amendment guarantees political speech, including protest, the highest level of protection — and the right to speak out is most robust in traditional public fora, including public parks and streets. Since this country’s founding, people have taken to the parks, streets, and sidewalks to make their voices heard on matters of public concern.

This case we brought against the City was about viewpoint discrimination. It was also about what evidence the government must present when seeking to revoke a permit once granted and to regulate the “place” of speech. Finally, it was about when and whether the voices opposing a person’s speech can be preferred by government and allowed to drive the speech with which they disagree out of the public place where its meaning is most salient. Ultimately, a federal judge agreed with our arguments.

History can be an unforgiving tutor. We are working to learn all that the tragic events of August 12 have to teach us. We hope to do that learning collectively in an environment focused on the future, rather than the past, remembering that when people make the next difficult decision they, too, will not have the benefit of hindsight; they will only be able to apply to a new and unique situation the intelligence and experience we share now.

The sad reality of this moment is that nearly every protest carries with it a risk of violence. Protecting the First Amendment in the current context requires extremely careful security and policing. Federal, state and local law enforcement (including campus police) need to be able to protect events where there is protest and risk of violence and withstand the criticism that comes with affording constitutionally required protection to those with odious ideas as the Charlottesville Police sought to do during the July 8 Ku Klux Klan rally. If we cannot find a way to police protests effectively and constitutionally in the current context, the result could well be that any and all speech can be prohibited if there is any risk of violence and only speech endorsed by the government with the resources to secure it will be heard. Among other things, we should ask ourselves why weapons of any kind (even sticks on signs) have been allowed to be carried into demonstrations in Virginia when they are not allowed at presidential inaugurations, Congressional town halls, sporting events or concerts or other large gatherings.

We believe that the Constitution and the rule of law offer a framework for decision-making that can protect speech and the public safety. We have offered to participate in “know your rights” training for local and state government officials facing these difficult situations and are encouraged that one local government association has invited us to participate in an upcoming statewide conference. As was often said in the 1960s, we seek to be part of the solution, not the problem.

Without a safe, secure, and nonviolent space for the free expression of ideas — even the most hateful ones — there can be no true freedom in academic, artistic, scientific, or political affairs. The decisions we make in this moment should not be ones that empower future leaders to use them as precedent in the pursuit of tyranny.

We issued the following statement last Saturday evening as the true horror of what happened was drawn into focus:

The ACLU of Virginia is sickened and distraught by the vile acts committed today in Charlottesville. We mourn for the lives senselessly lost, agonize for those harmed both physically and emotionally, and grieve for the community of which we and our members, friends and families are an ingrained part.

White supremacy is abhorrent. Bigotry, racism and hatred in any form are indefensible. Violence of any kind combined with any of the above is terrorism.

We condemn it, as we do the reprehensible individuals and organizations responsible both directly and indirectly through their words and deeds. As of this writing, this includes our president who condones today’s inhumanities by default.

Since its inception, and even as we have and will continue to fight for free speech for everyone, the ACLU of Virginia has stood up for respect, decency, equality and humanity for all. What happened today had nothing to do with free speech. It devolved into conduct against individuals motivated by hate that was initially thuggish, and ultimately, deliberately murderous.

We commit to live daily every word of that statement. After what happened in Charlottesville, no one can dispute that white supremacists, Nazis and their compatriots present a real and present danger to our democracy.

Like the national ACLU, the ACLU of Virginia has and will continue to devote the vast majority of our resources to legislative and advocacy initiatives and cases designed to defeat this evil and face down white nationalists and white supremacists wherever we can. Our goal continues to be to ensure true equality for all, including communities of color, women, the LGBT community, immigrants, people with disabilities, and political dissidents.

We will continue our work to reform our criminal justice system with a special regard for redressing racial injustice. We will continue to advocate for an amendment to our state constitution that will secure a right to vote for everyone that cannot be abridged by government. We will take action to protect access to abortion and end sex discrimination in all its forms, including against transgender people. We will guard against government invasion of our privacy, and fight mass surveillance. And, we will continue to fight for the essential freedoms to speak, associate, and demonstrate that remain indispensable tools for advancing justice.

Please know that we have been and remain open to hearing from you as our members and supporters. Our values at the ACLU of Virginia are people, progress, integrity, justice and courage. We are listening with an open mind and heart.

Peace.

Claire Guthrie Gastañaga, Executive Director; Steve Levinson, Board President

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