Sorry, Charlottesville, But You Can't Stop the Protests

(Bloomberg View) -- Charlottesville, Virginia, has rejected permit applications from five organizations, far-right and otherwise, to hold protests in the city’s parks on the one-year anniversary of last summer’s protests there.

It’s hard not to feel sympathy for the city, which struggled to manage the rallies and was unable to prevent the terrorist car-ramming that killed one woman and injured 19 other people.

There’s just one problem: Denying the permits is unconstitutional. Under well-established U.S. Supreme Court doctrine, a city can’t block peaceful protests just because it’s worried about keeping them peaceful. The police have an obligation to protect those protesters and the public -- even if it’s costly and requires lots of manpower.

Two famous Supreme Court cases set the bounds of free speech law when it comes to marches, protests and the like. The first, Brandenburg v. Ohio (1969), says that the government may only prohibit political speech when it is intended to incite imminent violence and is in fact likely to do so. This means that potential marchers can’t be prevented from marching just because their speech is going to make other people angry. So long as the speakers are not intending to create violence, they are constitutionally protected. Even if protesters were hoping to create violence, that wouldn’t be enough on its own to ban their speech. It would have to be likely to be imminent. If the police could stop it, it wouldn’t be likely to occur. The upshot is that the police need to be actively trying to contain any potential violence, not shutting down the speech in advance.

When it comes to the costs of protection, the controlling case is Forsyth County v. Nationalist Movement (1992). This case arose after racist marchers in Georgia’s whitest county were met by a large civil-rights counterprotest. The court held, among other things, that the county couldn’t shift the costs of protection onto unpopular speakers who were likely to need heavy protection.

The consequence of the Forsyth County decision is that the government has an affirmative obligation to spend whatever it takes to protect the freedom of speech. The burden to pay falls on the taxpayers, even if the speakers are outsiders.

Charlottesville had legal troubles even in the run-up to last summer’s events. The city tried to move the protest against the removal of the Robert E. Lee memorial away from the park where the memorial stood. But a federal judge ordered the city to let the protest occur there. The meaning of the speech would have been substantially changed by moving the protest, and the city did not have a credible argument that it could ensure public safety only by putting the protesters in a different venue.

To be sure, a city may lawfully insist that protesters and counterprotesters be kept apart to assure safety. A city may also make sure that protests don’t shut down traffic in a way that would significantly inconvenience the public. Protesters at Democratic and Republican national conventions have routinely been moved to venues that are quite far from the conventions they are protesting. This is a dicey business, constitutionally speaking, because it becomes harder and harder to protest a convention the farther away you get from the convention itself. But courts have, for the most part, upheld these restrictions on the basis of public safety.

So Charlottesville can and should require protesters to submit detailed plans of locations and march trajectories. It should control public space to assure that the protesters stay within legal bounds.

The University of Virginia, though considered a state actor under constitutional doctrine, could choose to be more restrictive with its space. The torch-light neo-Nazi/alt-right night march across the campus last summer was not authorized in advance. In my view, such a march could be prohibited in the interests of campus safety. A university campus, even a public one, should be treated differently from a public park or street, where free speech must be at its maximum.

The university could also reasonably designate some of its iconic spaces, like the Thomas Jefferson-designed lawn, as spaces devoted to university-sanctioned activities rather than speech by outsiders. That, too, would help avoid some of what happened last year in Charlottesville.

As for the danger of a terrorist attack like that of the driver who plowed into a crowd of peaceful anti-racist protesters, the only solution is better police protection.

Even faced with such threats, Charlottesville cannot just flat out prohibit the protests and counterprotests. It has to walk the fine line of allowing free speech while guaranteeing public safety for all. That’s a hard job for the police. But it’s what the First Amendment requires.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

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