Online

Payne v. City of Charlottesville and the Dillon’s Rule Rationale for Removal

I. Introduction

IN December 19, 2016, the City of Charlottesville’s Blue Ribbon Commission on Race, Memorials, and Public Spaces released a 328-page report to the City Council which, among other things, recommended either the removal or “transform[ation]-in-place” of the city’s monument of Robert E. Lee in what is now known as Emancipation Park.[1] On February 6, 2017, the Charlottesville City Council voted, three to two, to relocate the Lee Monument.[2] Two weeks later, a group of citizens and pro-Confederate activists filed a lawsuit against the city, Payne v. City of Charlottesville, requesting an injunction and alleging that the removal violated Va. Code § 15.2-1812, which regulates localities’ abilities to create and remove war memorials.[3] The injunction was granted and as litigation pended, white nationalists, led in part by University of Virginia alumni Richard Spencer and Jason Kessler, organized a massive rally to protest the monument’s removal.[4] The rally ended in the murder of Heather Heyer, the deaths of two police officers in a helicopter crash, and countless injuries.[5] On October 3, the Charlottesville state circuit court overruled the city’s demurrer and held that Va. Code § 15.2-1812 prevented the city from removing the Lee Monument, allowing the case to go to trial and the monument to remain standing.[6] The ultimate outcome of Payne v. City of Charlottesville will have a significant impact across the state, home to 96 of the country’s 700-plus Confederate monuments.[7]

Many legal issues have been raised in the weekend’s aftermath, from the First Amendment protection of hate speech[8] to the constitutionality of the monuments under the Fourteenth Amendment[9] to state prohibitions on “unlawful paramilitary activity.”[10] The heart of the issue—the reason why the Lee Statute still stands today—is the legal relationship between the Commonwealth of Virginia and its localities.

Virginia is a Dillon’s Rule state, meaning local governments may only exercise those powers expressly granted to them. This includes the authority to construct war memorials, which was first granted to all Virginia counties in 1904 and then all localities (adding cities and towns) in 1997 through various versions of Va. Code § 15.2-1812. Prior to the statute, localities were required to request a specific grant of authority—an Act of Assembly or Joint Resolution from the Virginia legislature—to construct such memorials. Without some form of authorization,[11] it was illegal for the locality to construct these monuments in a Dillon’s Rule state. Any restrictions applicable to the localities’ subsequent treatment of such monuments are governed exclusively by the state authority under which they were built,[12] unless those localities impose further restrictions on themselves, as Virginia statutes generally do not apply retrospectively.[13] Accordingly, monuments built in cities prior to 1997, such as Charlottesville’s 1924 Lee Monument,[14] are either unauthorized (ultra vires) or authorized by a specific Act of Assembly. The only restrictions on removal that are applicable to these pre-1997 monuments are those found within the original grant of authority, those imposed by localities on themselves, or the deeds associated with it—not Va. Code § 15.2-1812.

Only three authorities have directly weighed in on the question of whether Va. Code § 15.2-1812 applies to memorials created in cities prior to 1997: the state circuit court for the City of Danville,[15] the current Attorney General Mark Herring,[16] and the state circuit court for the City of Charlottesville,[17] respectively. They have reached varying conclusions, none of which are binding on other circuit courts across the state. When properly considering what the statute purports to authorize counties (and later cities) to do, it is clear that the statute cannot be read to apply to war memorials built in cities such as Charlottesville before 1997, as evidenced by the statute’s history, the text of the statute, and relevant Virginian common law on Dillon’s Rule and retroactivity.[18] At trial, the court should correct its previous reasoning, find Va. Code § 15.2-1812 to be inapplicable, and solely consider the legality of the removal based on other possible restrictions (if any) in balance with the city’s affirmative defenses.

II. The 1904 Statute Operates as a Specific, Prospective Grant Of Authority

The ability of Virginian cities to create and remove memorials has changed over time and is limited, first and foremost, by Virginia’s adoption of Dillon’s Rule,[19] an interpretive methodology for municipal authority which “limits the power of local governments to those expressly granted by the state or those necessarily implied or essential to express powers.”[20] Thus, “[w]hen a local ordinance exceeds the scope of this authority, the ordinance is invalid.”[21] Should it be reasonably unclear whether a locality, such as a city or county, has a power or not, “the doubt must be resolved against the local governing body.”[22] In other words, if a city wants to create a memorial of any kind, it must first find the authority to do so in an existing state law or ask the state legislature for permission. Any ordinances enacted by a locality beyond the scope of its powers are invalid and any locality actions above and beyond what state law authorizes are illegal.[23]

Prior to any broader statutory authority regarding monuments, the state regularly granted such permission to localities through Acts of Assembly, which often included varying restrictions on removal or modification. For example, in 1901 and 1902, the General Assembly passed such acts for seven counties.[24] In 1903, it passed seven more.[25] Attorney General Mark Herring, in his own analysis, noted that “[s]ome of these Acts contain restrictions on the disturbance of the monument, others are silent, and . . . one Act contains such a restriction and a related Act does not.”[26]

In February 1904, seemingly in lieu of passing many additional individual acts of assembly, the General Assembly passed an act (the “Act”) to empower the circuit court of a county, with the support of the county’s board of supervisors, to authorize “the erection of a Confederate monument upon the public square of such county at the county seat thereof.”[27] More restrictive than some of the individualized grants of authority, the General Assembly provided that “thereafter,” counties “or any other person or persons whatever” could not “disturb or interfere” with such monuments nor “prevent the citizens of [the] county from taking all proper measures and exercising all proper means for the protection, preservation, and care of the same.”[28] Importantly, the grant of authority is limited exclusively to counties.[29] It is unclear why the state did not, at the same time, grant this power also to cities and towns. Overall, however, it is clear that the 1904 Act operated as a very specific kind of authority and did not mean to be comprehensive nor to apply to all war memorials built by counties.[30] It began merely as a grant of authority to only counties to build only Confederate monuments only in public squares.[31] Any other monument in any other place would need separate authorization outside of the statute.

In 1988, the General Assembly passed a law which sought to “amend and reenact” Va. Code § 15.1-270, a recodification of the Act. The 1988 legislation made two significant changes, though the prospective nature and limited scope of the Act stayed constant.[32] First, the statute granted counties the authority to construct memorials for the Revolutionary War, the War of 1812, and the Mexican War.[33] This made clear that counties wishing to build memorials to unlisted wars would still need to seek authorization from the state legislature. Second, the General Assembly changed the clause from its prior reading of “if such shall be erected it shall not be lawful thereafter”[34] to disturb or interfere with the memorials, to “[i]f such are erected, it shall be unlawful”[35] to disturb or interfere with them. The change simplified the statute’s language but did not remove the conditional, proscriptive phrasing. Thus, even taking into account the removal of the word “thereafter,” the effect of the statute remained the same: if a county chooses to erect a memorial under the authority of this statute, it cannot disturb or interfere with the memorial. Such a construction facially has no application to monuments erected previously under a different grant of authority.

In 1997, the General Assembly again changed the statute in several impactful ways. Most importantly for our purposes, the general grant of authority now applied to any “locality,” not just counties.[36] Next, the General Assembly expanded the list of conflicts for which a memorial could be created and moved this list to a different section of the statute.[37] Finally, the statute broadened the authority of both counties and cities by allowing localities to place memorials on any of their property, not just within their public squares.[38]

The most recent amendments          to the statute were passed in 1998, which broadened the statute’s scope but kept its proscriptive format. That statute, codified at Va. Code. § 15.2-1812, now authorizes localities to erect “monuments or memorials for any war or conflict, or . . . any engagement of such war or conflict,” though it still includes a list of well-known conflicts as examples.[39] Additionally, the statute enables a locality to erect such monuments anywhere within its “geographical limits” and not just upon its own property.[40] The amendments also added a definition of “disturb or interfere,” which notably includes “removal” and “placement of Union markings or monuments on previously designated Confederate memorials” and vice versa, though it does not explicitly include relocation.[41] Most importantly, while the General Assembly yet again broadened the statute, it kept the same conditional, prospective phrasing.[42] The common sense reading of the statute remained, and still remains to this day, that the limitations on removal imposed by the statute apply exclusively to those memorials erected under the statute’s authority—not to those erected prior to the passage of the statute. Thus, memorials erected by cities prior to the 1997 (or 1998) amendments simply do not fall within the scope of the statute and are not prevented by the Act or its progeny from being removed or relocated.

III. This Prospective Grant of Authority Cannot Be Read to Apply Retroactively

The above reading of Va. Code. § 15.2-1812 makes it impossible to apply the removal restrictions to monuments built under other grants of authority.[43] If a monument was built under no grant of authority, the above statute, and the prior authorities, certainly do not retroactively authorize the illegally built statue and then restrict its removal. By the same token, the statute’s removal restrictions cannot be read to apply retroactively to monuments built under totally different authorities because Virginia’s common law on retroactivity doctrine and the statute’s legislative history prevent such a reading.

Since 1904, the rule in Virginia has been that the state’s statutes “are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest beyond reasonable question.”[44] The principle behind such a rule is to minimize the interference between new laws with old rules or contractual agreements. As recently as 2015, the Supreme Court of Virginia affirmed that the state “does not favor retroactive application of statutes” unless there is an “express manifestation of intent by the legislature.”[45] Additionally, “[i]t is reasonable to conclude that the failure to express an intention to make a statute retroactive evidences a lack of such intention.”[46] Moreover, courts are particularly cautious in finding a statute to have a retroactive effect on government actors:

Especially do courts shrink from holding an act retrospective when it affects public objects and duties, and, when it affects rights accrued and acts done by law for the public interest and necessities, it must be presumed that the law makers of the new act did not intend it to be retrospective, unless that intent be expressed in the language, or plainly appear upon the face of the act itself.[47]

Given the weight of the restriction imposed by Va. Code. § 15.2-1812 on localities, the conditional and prospective phrasing of the statute’s removal clause, and the public nature of the statues at issue, the language of the statute and the legislative intent are not manifest enough for any court to hold that the statute applies retroactively. Even if a court should find that the language of the statute is ambiguous or debatable, the court’s subsequent course of action is clear: without the language or intent being “manifest beyond reasonable question,”[48] the court must find that the statute does not apply retroactively.

This limiting interpretation of the statute is further evidenced by the attempt of the Virginia General Assembly to enact a bill which explicitly extended the protections of the statute retroactively to war memorials built under other grants of authority. A proposed amendment sought to eliminate the key conditional, prospective phrase (“[i]f such are erected”) and added: “The provisions of this subsection shall apply to all such monuments and memorials, regardless of when erected.”[49] While in all other renditions of the statute[50] the restrictions on removal are tied to the grant of authority, this draft detached them from each other, giving the restrictive clause independent operation. Such a sentence would effectively separate the removal restrictions from the general grant of authority.

The amendment was proposed during the 2016 session, after the October 2015 decision in Danville and the July 2015 removal of the Confederate Flag from state grounds in South Carolina, a response to the tragic murder of nine black Americans by white supremacist Dylann Roof.[51] It was ultimately vetoed by Virginia Governor Terry McAuliffe. The Governor defended his veto as follows:

There is legitimate discussion going on in localities across the Commonwealth regarding whether to retain, remove, or alter certain symbols of the Confederacy. These discussions are often difficult and complicated. They are unique to each community’s specific history and the specific monument or memorial being discussed. This bill effectively ends these important conversations.

*  *  *

I am committed to supporting a constructive dialogue regarding the preservation of war memorials and monuments, but I do not support this override of local authority.[52]

The Governor’s justifications summarize important policy arguments for not erroneously construing the current statute to apply retroactively to grants of authority independent of the statute. Note also that the City of Charlottesville Blue Ribbon Commission on Race, Memorials, and Public Spaces relied on this specific legislative history when recommending that the City Council remove or transform the city’s Lee Monument.[53]

In another case,[54] the Danville circuit court properly adhered to state precedent and the legislative history when it held that Va. Code § 15.2-1812 was inapplicable to a monument, which commemorated the Sutherlin Mansion as “the Last Capitol of the Confederacy,” for two reasons: first, because the statute did not apply retroactively, and, second, because the memorial at issue was not a war memorial. In its brief, three-page opinion, the court succinctly concluded that, “[a]s a matter of law, Virginia Code § 15.2-1812 does not apply retroactively to the monument at issue in this litigation, which was donated to the City of Danville in 1994 and erected . . . in 1995.”[55] The court’s focus in this holding was clearly on the years that the monument was received and formerly established. Given that both of these actions occurred prior to the statute’s inclusion of all localities—not just counties—in 1997, the statute was not applicable.

In contrast, when the Charlottesville Circuit Court overruled the city’s demurrer in Payne v. City of Charlottesville, it misunderstood the operation of the statute and did not adhere to the principle established in Arey that statutes generally only operate prospectively. Instead the court decided that the statute applied retroactively, based on the “content and wording of the statute itself,” as well as “[l]ogic and common sense.”[56] The court found that the 1997 amendment of the statute was “expanding protections as well as the power and authority originally applicable to the counties,” but did not recognize that those protections were only operative to actions taken from that same grant of authority.[57]

This reasoning runs counter to Arey, which establishes that the court cannot read in what it interprets to be the “common sense” reading of the statute when the question is whether or not the statute applies retroactively. Instead, the court’s outcome must be dictated by “the face of the instrument or enactment” that is “manifest beyond reasonable question.”[58] The court’s insistence that its interpretation is common sense simply does not change the face of the statute nor its contradictory legislative history, which must govern under Arey. In other words, the lack of legislative history supporting the court’s interpretation and the plain language of the statute dictate that the court only applies it to monuments which were built under its authority, which could not have included the 1924 Lee Monument in Charlottesville, which is a city.

The Charlottesville Circuit Court placed substantial reliance on the outcome of Sussex Community Services Association v. Virginia Society for Mentally Retarded Children, Inc., which said, in dictum, that “we have never imposed a requirement that any specific word or phrase be used in order to support a finding of clear legislative intent or retroactive application.”[59] The key difference between the statute at issue in Sussex and the one at issue here is the word “any” and the lack of a conditional, prospective clause. The statute in Sussex read: “A family care home, foster home, or group home . . . shall be considered for all purposes residential occupancy by a single family when construing any restrictive covenant which purports to restrict occupancy or ownership of real or leasehold property to members of a single family.”[60] If that statute were to apply prospectively—and thus mimic the structure of Va. Code § 15.2-1812—the Sussex statute would read: “If a restrictive covenant is formed which purports to restrict occupancy or ownership of real or leasehold property to members of a single family, then a family care home, foster home, or group home shall be considered for all purposes residential occupancy by a single family.” Put another way, if Va. Code § 15.2-1812 were written similarly to the statute at issue in Sussex, it would read like the version vetoed by Governor McAuliffe in 2016.[61] The legislature chose a different construction, and the court should not read intent into the statute, no matter how “inescapable,” “impossible,” or nonsensical that may seem to a particular court.[62]

Finally, in Payne the Charlottesville Circuit Court made a great deal out of a general state policy to protect war memorials even when they may fall out of favor within a locality,[63] but this general policy was clearly defeated when a retroactive version of the statute was vetoed by Governor McAuliffe in 2016. This is further demonstrated by the statute’s evolution, which consistently limited itself only to those conflicts that it saw as important.

Further, when the Act was originally passed, it only applied to Confederate memorials.[64] As noted previously, the amended 1988 statute was expanded to include the Revolutionary War, the War of 1812, and the Mexican War (in addition to the previously included World Wars I and II, the Korean War, and the Vietnam War).[65] Such an ad hoc addition of conflicts, which specifically favored some conflicts over others, does not reflect a policy of protecting all war memorials, especially those that may fall out of favor in a particular locality.

IV. Other Restrictions On Removal

Even if a statue was not constructed under the authority of Va. Code § 15.2-1812, other restraints on removal may exist, including locality-specific constraints and monument-specific constraints. Localities have restricted their own abilities to remove or relocate such memorials through, for example, local ordinances, charters, or other planning documents. For example, the City Attorney Allen Jackson reportedly advised Richmond’s City Council that the four Confederate statues on Monument Avenue could not be removed due to a provision of Richmond’s City Charter and its master plan.[66]

Monument-specific constraints include those found in transfer instruments and grant programs. As summarized by Attorney General Herring, “a monument may have been donated to the locality subject to reversionary terms or conditions in the transfer instrument triggered by the locality’s attempt to remove or disturb the monument,” or “a locality might have received funding for the acquisition, maintenance, preservation or enhancement of the monument through a grant program that places restrictions on any alteration of the monument.”[67] However, it is critical to realize that any constraints placed on the city through transfer instruments or grant programs are obligations only to the original parties in the transaction, creating an entirely different procedural dynamic and significantly limiting the population with standing to challenge the city’s actions.

V. Conclusion

In the Commonwealth of Virginia, under Dillon’s Rule, the most appropriate reading of the statute is as a prospective and historically limited grant of authority which comes with embedded restrictions. Every statue erected by a locality in the Commonwealth needs authorization,[68] and many localities derived authority to build war memorials from the 1904 statute. However, this was simply not the case in cities, since the statute narrowly applied only to Confederate monuments in county public squares for eighty-four years. Indeed, the statute did not apply to cities at all for nearly a century. From its inception and throughout its amendments, the statute’s scope remained limited and its conditional, prospective phrasing remained constant. The statute’s limited scope and phrasing dictate a reading that does not have any bearing on the removal of statues built under other grants of authority. In order to apply these restrictions retroactively to illegally-built statues or to statues built under other grants of authority, the state legislature would need to make it manifestly clear on the face of the statute that it is meant to apply retroactively. Thus, as a Dillon’s Rule state a careful reading of Va. Code § 15.2-1812 and its history yields the appropriate result: Va. Code § 15.2-1812 has no bearing on war memorials built in cities prior to 1997 and does not prevent their removal.

 

 

*J.D. Candidate 2019, University of Virginia School of Law. I would like to thank Professor Richard Schragger for his invaluable guidance and edits; Professors Molly Brady and Ben Doherty for their encouragement and research assistance; and my family for their open minds, honest conversations, and unconditional support.

[1]City of Charlottesville Blue Ribbon Comm’n on Race, Memorials, and Pub. Spaces, Report to City Council 8–10 (Dec. 19, 2016), https://perma.cc/C2F5-DWCX.

[2]Chris Suarez, Charlottesville City Council Votes to Remove Statue from Lee Park, Daily Progress (Feb. 6, 2017), https://perma.cc/W9PY-CCB2.

[3]Complaint at 9­–11, 16, Payne v. City of Charlottesville, No. 17-145 (Va. Cir. Ct. Feb. 2017).

[4]Payne v. City of Charlottesville, No. CL 17-145, 16 (Va. Cir. Ct. Oct. 3, 2017) (ruling on demurrer); Vincent Law, The ‘Unite the Right’ Rally Is Going To Be A Turning Point For White Identity In America, AltRight.Com (Aug. 5, 2017), https://perma.cc/CN8G-MVQL.

[5]Benjamin Hart & Chas Danner, Three Dead and Dozens Injured After Violent White-Nationalist Rally in Virginia, N.Y. Mag. (Aug. 13, 2017), https://perma.cc/6EFS-M7F8.

[6]Payne, No. CL 17-145 at 16.

[7]S. Poverty L. Ctr., Whose Heritage? Public Symbols of the Confederacy 10–11 (April 21, 2016), https://perma.cc/43SU-TGLF.

[8]Leslie Kendrick, How to Defend the Constitution When the KKK Comes to Town, CNN: Opinion (July 12, 2017), https://perma.cc/E9H8-VCW7.

[9]See Micah Schwartzman & Nelson Tebbe, Charlottesville’s Monuments Are Unconstitutional, Slate (Aug. 25, 2017), https://perma.cc/7HZC-W5HR.

[10]Laura Jarrett, Charlottesville Suing to Stop Private Militias at Future Rallies, CNN (Oct. 12, 2017), https://perma.cc/YH2E-9JCY.

[11]Other grants of authority could have been read to include the construction of war memorials in public spaces. In 1908, that the General Assembly granted cities and towns the authority to “establish and maintain parks, playgrounds and boulevards.” 1908 Va. Acts ch. 349. Whether this would or would not have empowered cities and towns to create war memorials, given the state’s adoption of Dillon’s Rule, is beyond the scope of this analysis. However, Professor Richard Schragger’s analysis of the ability to create and beautify parks as applied to the Charlottesville statute suggests that such a power included the ability to create war memorials within those parks. Richard Schragger, Opinion, Is Charlottesville’s Robert E. Lee Statue Illegal?, Richmond Times-Dispatch (Aug. 30, 2017), https://perma.cc/‌LXY7-268M.

[12]The controversies on August 11th and 12th demonstrate the benefits of local control. The city democratically decided to remove the statue, and the potential of the state law to prevent its removal has created a window of uncertainty filled by violence and pain. Still, Dillon’s Rule is the law in Virginia. See infra Part II. This Essay proceeds within that framework and argues that, even within it, removal is still a viable option for many statues.

[13]See brief discussion infra Part III and notes 62–63 and accompanying text.

[14]City of Charlottesville, History and Gardens of Emancipation Park, https://perma.cc/7WPP-6Z97.

[15]Heritage Preservation Ass’n v. City of Danville, No. CL15000500-00, slip. op. at 2 (Va. Cir. Ct. Nov. 7, 2015).

[16]Letter from Mark R. Herring, Att’y Gen. of Va., to Julie Langan, Dir., Va. Dep’t of Historic Res., concerning § 2.2-505 (Aug. 25, 2017), https://perma.cc/M24G-CUZ8 [hereinafter “Herring Letter”].

[17]Payne v. City of Charlottesville, No. CL 17-145, at 7 (Va. Cir. Ct. Oct. 3, 2017) (ruling on demurrer).

[18]See discussion infra Part III.

[19]The namesake of Dillon’s Rule is Judge Forest Dillon, who authored an important treatise on the law of municipalities and articulated the rule as follows: “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation,—not simply convenient, but indispensable.” Dillon’s Rule: The Case for Reform, 68 Va. L. Rev. 693, 693–94 (1982) (emphasis omitted) (citing 1 John F. Dillon, Commentaries on the Law of Municipal Corporations § 237 (5th ed. 1911)).

[20]TransDulles Ctr. v. USX Corp., 976 F.2d 219, 224 (4th Cir. 1992).

[21]City of Chesapeake v. Gardner Enter., 482 S.E.2d 812, 814 (Va. 1997).

[22]Bd. of Supervisors v. Reed’s Landing Corp., 463 S.E.2d 668, 670 (Va. 1995).

[23]For a more thorough discussion of municipal and state powers, see generally Richard C. Schragger, When White Supremacists Invade A City, 104 Va. L. Rev. Online 58 (2018).

[24]See 1901 Va. Acts ch. 38 (Appomattox); 1902 Va. Acts ch. 176 (Essex); id. at ch. 177 (Isle of Wight); id. at ch. 183 (Smyth); id. at ch. 332 (Louisa); id. at ch. 386 (Chesterfield); id. at ch. 427 (Madison).

[25]See 1903 Va. Acts ch. 58 (King William); id. at ch. 83 (Amelia); id. at ch. 116 (Bedford); id. at ch. 117 (Campbell); id. at ch. 130 (Botetourt); id. at ch. 307 (Greensville); id. at ch. 465 (Mecklenburg). These acts fall within what the Southern Poverty Law Center identified as the first peak in Confederate memorialization, from 1900 to 1914. S. Poverty L. Ctr., supra note 7, at 14–15.

[26]Herring Letter, supra note 16, at 5.

[27]1904 Va. Acts ch. 29.

[28]Id.

[29]Id.

[30]It is not clear exactly why the statute was passed in 1904, nor why its grant of authority was so limited. For greater discussion about the state’s intentions, see generally Schragger, supra note 23.

[31]1904 Va. Acts ch. 29.

[32]1988 Va. Acts ch. 284; Herring Letter, supra note 16, at 2.

[33]1988 Va. Acts ch. 284; contra 1904 Va. Acts ch. 29. Prior amendments and recodifications had previously added World War I, World War II, and other wars.

[34]1988 Va. Acts ch. 284.

[35]Id.

[36]1997 Va. Acts ch. 587 at 1114.

[37]Id.

[38]Id.

[39]Va. Code Ann. § 15.2-1812 (2017).

[40]Id.

[41]Id.

[42]Id. (“If such are erected, it shall be unlawful for the authorities of the locality, or any other person or persons, to disturb or interfere with any monuments or memorials so erected, or to prevent its citizens from taking proper measures and exercising proper means for the protection, preservation and care of same.” (emphasis added)).

[43]As discussed above, prior legislative acts also could not be read as a source for this authority. See supra notes 19–42 and accompanying text.

[44]Arey v. Lindsey, 48 S.E. 889, 890 (Va. 1904).

[45]Bailey v. Spangler, 771 S.E.2d 684, 686–87 (Va. 2015).

[46]Ferguson v. Ferguson, 192 S.E. 774, 777 (Va. 1937).

[47]City of Richmond v. Supervisors of Henrico Cty., 2 S.E. 26, 30 (Va. 1887)

[48]Arey, 48 S.E. at 890.

[49]H.B. 587, 2016 Gen. Assemb., 2016 Sess. (Va. 2016) (proposed amendment).

[50]See supra notes 19–42 and accompanying text.

[51]Stephanie McCrummen & Elahe Izadi, Confederate Flag Comes Down on South Carolina’s Statehouse Grounds, Wash. Post (July 10, 2015), https://perma.cc/FZ44-4MLF; S. Poverty L. Ctr., supra note 7, at 10–11.

[52]Governor’s Veto of H.B. 587, 2016 Gen. Assemb., 2016 Sess. (Va. 2016).

[53]City of Charlottesville Blue Ribbon Comm’n, supra note 1, at 22.

[54]Heritage Preservation Ass’n v. City of Danville, No. CL15000500-00 (Va. Cir. Ct. Nov. 7, 2015).

[55]Id. at 2.

[56]Payne v. City of Charlottesville, No. CL 17-145, at 4 (Va. Cir. Ct. Oct. 3, 2017).

[57]Id.

[58]Arey v. Lindsey, 48 S.E. 889, 890 (Va. 1904); see also Gloucester Realty Corp. v. Guthrie, 30 S.E.2d 686, 688 (Va. 1944) (noting that statutes are presumed to be prospective unless “plainly so intended”).

[59]467 S.E.2d 468, 470 (Va. 1996).

[60]Id. at 469 (emphasis added).

[61]See supra notes 52–60 and accompanying text.

[62]Payne, No. CL 17-145 at 4–6.

[63]Id. at 4–5 n.2.

[64]1904 Va. Acts ch. 29.

[65]1988 Va. Acts ch. 284.

[66]Jeremy Lazarus, City Attorney: City Council Has No Authority to Remove Confederate Statues, Richmond Free Press (Oct. 6, 2017), https://perma.cc/9JA7-XQ7C. A closer look at the actual text of the city charter calls this conclusion into question, though. See Richmond City Charter, § 17.05 (2006) (“It shall be the further duty and function of the Commission to preserve historical landmarks and to control the design and location of statuary and other works of art which are or may become the property of the City, and the removal, relocation and alteration of any such work; and to consider and suggest the design of harbors, bridges, viaducts, airports, stadia, arenas, swimming pools, street fixtures and other public structures and appurtenances.” (emphasis added)).

[67]Herring Letter, supra note 16, at 5.

[68]See supra notes 19–22 and accompanying text.

Your ‘Little Friend’ Doesn’t Say ‘Hello’: Putting the First Amendment Before the Second in Public Protests

“‘I can tell you this, 80 percent of the people here had semiautomatic weapons. You saw the militia walking down the street, you would have thought they were an army. I was just talking to the State Police upstairs; they had better equipment than our State Police had.’”[1]

VIRGINIA Governor Terry McAuliffe gave the preceding statement August 13, 2017, a day after the “Unite the Right” rally in Charlottesville, Virginia forced Americans to confront racist ideologies and deplorable dogmas most hoped had ended with V-Day in 1945. Nazi sympathizers and members of the alt-right invaded the city with tiki torches, protective gear, shields, and guns, protesting the Charlottesville City Council’s decision to remove a statue of Confederate General Robert E. Lee from Emancipation Park.

“We didn’t aggress. We did not initiate force against anybody,” white nationalist Chris Cantwell told reporter Elle Reeves. “We’re not nonviolent. We’ll fucking kill these people if we have to.”[2]

And kill they did. Three people died during the Unite the Right rally. Heather Heyer, age 32, died after a Nazi sympathizer plowed into a crowd on Charlottesville’s Downtown Mall with his vehicle, and state troopers Lieutenant H. Jay Cullen and Trooper-Pilot Berke M. M. Bates died in a helicopter crash while on their way to respond to the day’s events.[3] Despite the fact that guns were not to blame for these deaths, the display of firearms at protests and demonstrations in Charlottesville and in similar rallies before and after the events of August 11 and 12 have forced cities and municipalities to grapple with Second Amendment rights in relation to First Amendment freedoms. Armed protesters are constitutionally—and in most cases, statutorily—granted a right to bear arms for the purposes of self-defense in certain circumstances; however, the presence of their firearms may chill the speech and expressive rights of unarmed demonstrators or of fellow armed protesters by their very display.

But some gun advocates have argued that, separate and apart from the Second Amendment, the First Amendment further protects the “speech” and expression of their firearms. The First Amendment protects expression, but the line dividing protected speech and conduct from unprotected speech and conduct is often malleable, with protection hinging on good lawyering and favorable facts. This Essay will offer preliminary thoughts regarding the tension between First and Second Amendment rights, and specifically address whether the display of firearms can be construed as symbolic speech. Furthermore, this Essay will explore whether protest sites can be classified as “sensitive places” where prohibitions on the possession of firearms may constitutionally stand under District of Columbia v. Heller.[4] This is by no means an exhaustive analysis—instead, I hope it will serve as the foundation for future scholarship considering the questions at issue.

For the purposes of this Essay, I will be using “demonstrators” to refer to the members of the alt-right and Nazi movement, and “protesters” to describe the people of Charlottesville and surrounding communities who protested against the presence and premise of the Unite the Right demonstrators. Part I addresses whether openly carrying a firearm in public can constitute expression protected under the First Amendment, and considers whether an unloaded gun is entitled to constitutional protections irrespective of whether loaded guns are protected expression. Part II assesses the scope of the Second Amendment right to self-defense discussed by the Supreme Court in Heller, and briefly discusses the deepening circuit split over whether there is a right to carry a firearm for self-defense outside of an individual’s home. After finding that historical evidence and case law support the right to carry a firearm for purposes of self-defense outside the home, Part III explains why the law should protect First Amendment rights over those of the Second Amendment, and discuss how public protests can be classified as a “sensitive place” at which firearms may constitutionally be forbidden.

I. The First Amendment: Open Carry as Symbolic Speech

The line between protected expression and unprotected conduct at times disappears in First Amendment jurisprudence. Although the Supreme Court has rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,”[5] it has recognized some conduct may be “sufficiently imbued with elements of communication” to fall within the scope of the First Amendment.[6] To determine whether conduct constitutes speech for First Amendment purposes under Spence v. Washington, the guiding case on the issue, we must ask whether “[a]n intent to convey a particularized message was present” and whether “in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”[7] As the Court implied in Texas v. Johnson[8] and Tinker v. Des Moines Independent Community School District,[9] “[s]omeone has to do something with the symbol before it can be speech.”[10] Items themselves are not expressive; although a flag or an armband may be associated with particular nations or causes, it takes the addition of a person’s action and intention for the item to become classified as symbolic speech.

Some open carry advocates have sought protection for the right to carry firearms within the First Amendment’s “symbolic speech” doctrine.[11] Courts that have considered whether open carry amounts to expressive conduct worthy of First Amendment protection have so far found the argument unpersuasive, though they have recognized that under certain circumstances gun possession may function as protected expression. For example, the U.S. Court of Appeals for the Ninth Circuit conceded in Nordyke v. King that “[g]un possession can be speech” upon a satisfactory showing under Spence,[12] but also noted, “[t]ypically a person possessing a gun has no intent to convey a particular message, nor is any particular message likely to be understood by those who view it.”[13] Similarly, in Baker v. Schwarb, the Eastern District of Michigan found that two gentlemen walking down a public sidewalk with two holstered handguns and two rifles were not protected by the First Amendment because they “gave no visual cues to provide context for their actions” and instead of conveying a message to others, “passer-byes were simply alarmed and concerned for their safety and that of their community.”[14] In Northrup v. City of Toledo Police Division, relying on Baker, the Northern District of Ohio found that because Northrup “had to explain the message he intended to convey” he vastly undermined his own argument “that observers would likely understand the message,” a condition required under Spence.[15]

The case that has come closest to satisfying Spence is Burgess v. Wallingford.[16] In a purportedly expressive display, Richard Burgess wore a t-shirt supporting Connecticut’s right to bear arms and kept gun rights brochures on his person as he attempted to enter Yale Billiards while wearing a loaded gun visible in his hip holster.[17] Despite this, the District of Connecticut found Burgess’s conduct was outside of First Amendment protection because reasonable minds “could disagree regarding whether his shirt established a great likelihood that others would interpret his weapon as a particularized message regarding the Second Amendment rather than, for example, a weapon carried for protection.”[18] As of this writing, none of the courts that have considered whether public gun possession can be protected as symbolic speech have found that the gun’s “expression” was more than merely ancillary to the firearm’s intended function, and thus was undeserving of First Amendment protection.

For the purposes of argument, consider how the calculus would change if we deprived the firearm of its functionality. Can an unloaded gun qualify as expression, once it is no longer an actual threat to the bodily integrity of those in the near vicinity? If the gun cannot physically harm anyone, its holder must intend for it to serve another purpose. However, unlike other expressive items, such as signs, flags, or armbands, the sight of a gun immediately insinuates harm regardless of whether or not it has the potential to do so. Reasonable minds and seasoned experts alike would be unable to discern a loaded “actual threat” from an unloaded “perceived threat,” and the cost of miscalculation is insurmountably high. If gun possession can be speech upon a satisfaction of Spence, the gun-bearers must grapple with the message they intend to convey with their firearm. While inexpressive conduct categorically falls outside of the First Amendment’s purview, some expressive conduct can also fall outside the scope of its protection.[19] It is important to be precise about the message the speaker intended to convey because the speaker’s intention must align with the listener’s likely understanding of the message in order to satisfy Spence.[20] The following discussion considers what firearms might “say”—should they be found to be expressive—and suggests the applicable constitutional limitations.

A. Gun Says “Pro-Second Amendment”

If demonstrators intend to advocate for permissive gun laws in traditional public forums like parks, streets, and sidewalks, then gun possession could be construed as political speech. However, having the item for which individuals are advocating present at the demonstration is unnecessary. Supreme Court jurisprudence establishes that the manner in which protests are conducted can be regulated as long as the government provides “ample alternative channels” for the communication of the protester’s message.[21] Similarly, restrictions on speech in traditional public forums may be subject to content-neutral and narrowly tailored time, place, and manner restrictions designed to serve a compelling state interest.[22] Government regulation of expressive activity is content-neutral as long as it is “justified without reference to the content of the regulated speech.”[23] Therefore, a city or municipality could construct a “manner” restriction to prohibit potentially harm-causing items from appearing at protests so long as the regulation is applied regardless of viewpoint and justified without regard to its communicative impact.[24] The argument is similar to those found compelling in the context of the prohibition of sound amplification at outdoor events,[25] restrictions on protests outside of abortion clinics,[26] and permitting processes for demonstrations more broadly.[27] The communication of the ideas themselves is not prohibited, but the way in which the message may be conveyed to the public is subject to reasonable regulation. Consider demonstrations in support of the legalization of marijuana, or against holding exotic animals in captivity. Although the government may not stop the protests from occurring based on the protester’s view, the government need not permit marijuana to be present at the protest because it furthers the protest’s aim, nor need it allow exotic animals to roam free to convey the protester’s message. So it follows that firearms need not be permitted at pro-Second Amendment demonstrations, because the message may be adequately conveyed without the item at issue present.

B. Gun Says “Be Afraid” or “I Will/I Want Others To Harm You/Others”

If, however, the firearm’s intended message is one of intimidation, threat, or bodily harm, then the expression may be statutorily prohibited[28] as well outside of the First Amendment’s protection.[29] Speech that amounts to mere “offense” is protected under the First Amendment.[30] However, the benefits of some forms of speech, such as “fighting words” and words intended to cause violence, are “clearly outweighed by the social interest in order and morality” and are outside of the First Amendment’s scope.[31] Notwithstanding this, case law has circumscribed restrictions on these utterances to very specific instances.[32] Most applicable here are bars against “true threats” and the incitement of imminent lawless action. True threats fall outside of First Amendment protection insofar as they “communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or a group of individuals.”[33] In application, however, the standard has been difficult to discern and apply—particularly the intent element.[34]

Speech inciting imminent lawless action is similarly unprotected.[35] The test for discerning such speech, established in Brandenburg v. Ohio, prohibits states from forbidding speech unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[36] Modern interpretations of the incitement doctrine suggest “implicitly encourag[ing] the use of” force may be enough to satisfy the first prong of the Brandenburg test.[37] Regardless of whether an unloaded gun is used purely for expressive purposes, if the speaker intends violence to result from the speech and it is likely that violence will result, the gun-bearer’s claim to First Amendment protection fails because its speech is outside of the amendment’s protection.[38]

C. Gun Says “Stop Speaking”

Intellectual exercises aside, courts have also consistently found against laws and actions that chill the expressive freedoms of others, particularly in relation to political speech.[39] Firearms at protests and rallies undoubtedly chill the otherwise protected political speech of those both for and against the rally’s message for fear of violence, and this in turn runs directly contrary to the First Amendment’s core intention of protecting constructive political discourse.[40] Although the gun holders may in turn claim their political speech is chilled by prohibiting firearms at rallies, such regulation would create a “benign chilling effect” and would be permissible because the expression of violence and intimidation falls outside of First Amendment protection.[41]

II. Second Amendment: The Fundamental Right to Carry a Firearm in Public for Purposes of Self-Defense

The Second Amendment guarantees “the right of the people to keep and bear Arms, shall not be infringed.”[42] The Supreme Court recognized in District of Columbia v. Heller that the Second Amendment codifies a “pre-existing” individual right for “law-abiding citizens” to “possess and carry weapons in case of confrontation” regardless of service in a militia.[43] However, the Court recognized the right is “not unlimited”[44] and carefully cabined Second Amendment rights to protect “the right of law-abiding, responsible citizens to use arms in defense of the hearth and home.”[45] Two years later, in McDonald v. City of Chicago, the Court reaffirmed its finding that “the need for defense of self, family, and property is most acute in the home”[46] and incorporated the right to “possess a handgun in the home for the purpose of self-defense” to the states through the Due Process Clause of the Fourteenth Amendment.[47] However, the Heller and McDonald Courts did not purport to discern the “full scope of the Second Amendment,” and the extent to which the right to bear arms outside of the home has yet to be established.[48]

Lower courts are divided on whether the right to bear arms for the lawful purpose of self-defense extends outside of the home. In July 2017, the D.C. Circuit addressed discrepancies among the circuits over whether laws prohibiting carrying firearms in public without a showing of “proper” or “good” cause were constitutional in Wrenn v. District of Columbia.[49] The Second,[50] Third,[51] and Fourth[52] Circuits have upheld “proper cause” requirements, deferring to state legislatures to properly determine the balance between the Second Amendment and public safety concerns. However, as the Ninth Circuit noted in a decision that was subsequently vacated, and as the D.C. Circuit acknowledged, these courts may have employed the very interest-balancing test proposed by Justice Breyer in Heller that was handily rejected by the majority.[53] Heller requires a rigorous historical inquiry to discern the scope of the rights protected within the Second Amendment because constitutional rights “are enshrined with the scope they were understood to have when the people adopted them.”[54] After conducting a comprehensive historical analysis, the Seventh,[55] Ninth,[56] and D.C. Circuits[57] have essentially reached the conclusion that for “the vast majority of responsible, law-abiding citizens . . . carrying weapons in public for the lawful purpose of self-defense is a central component of the right to bear arms”[58] and therefore the right may not be categorically prohibited but for “longstanding” prohibitions found by the Heller court to be constitutional.[59]

In June 2017, the Ninth Circuit’s petition for certiorari to address the scope of the Second Amendment’s protection outside of the home was denied[60] and in October 2017 the District of Columbia declined to appeal the D.C. Circuit’s ruling in Wrenn to the Supreme Court.[61] A definitive ruling from the Court about the extent of Second Amendment rights to carry firearms in public must therefore wait for another case.

Although the Court may recognize some Second Amendment right to carry a firearm in public in the future, the extent of the right will in part be informed by what may appropriately be classified as “self-defense.”[62] If our law only permits carrying guns for self-defense, does that preclude firearms that historically have been used as tools of aggression, like assault rifles? May an individual carry more than one firearm at a time for “self-defense”? How many rounds may an individual load or carry on their person under the guise of self-defense? These questions, too, naturally lead to others—should someone be in violation of these laws, will the government be able to stop them? Or, as in Charlottesville, will those exercising their Second Amendment rights have “‘better equipment than [the] State Police had’” and encourage the state to stand down?[63]

III. The First Before the Second: Limitations and Sensitive Places

Firearms at protests and rallies force fundamental rights into direct conflict. Gun-bearers have the right to speak, to assemble, to express themselves within the confines of the law and exercise their Second Amendment rights to defend themselves should the situation require it.[64] Unarmed attendees also have the right to speak, assemble, and express themselves within the confines of the law, and should be able to do so free from fear for their bodily integrity.[65] Looking both to Charlottesville and beyond, how should courts approach situations in which demonstrators feel that they must exercise their Second Amendment rights to defend against a “hostile audience,”[66] while the audience perceives the speaker’s speech to be hostile in and of itself? When both sides fight for their views in the marketplace of ideas and the “fight” could be properly construed as a war, whose rights should prevail at the expense of the others’?

As the Court has recognized in Heller, the right to carry a firearm in public is not absolute. “Longstanding” prohibitions, like those barring the mentally ill and felons from lawfully owning firearms, are constitutionally permissible.[67] Similarly, and of particular consequence when suggesting appropriate constitutional limitations on firearms in public protest sites, laws can prohibit possession in “sensitive places,” including “schools and government buildings.”[68] These are constitutional in part because bans on particular locations allow carriers to maintain an “undiminished right of self-defense” by providing proper notice so they may avoid those locations.[69]

Lower courts have interpreted “sensitive places” to include county property,[70] national parks,[71] post office parking lots,[72] university campuses,[73] and airplanes.[74] Schools, government buildings, and the additional examples lower courts have recognized as sensitive places have in common a particular obligation for the locations to provide security for their inhabitants and a “regular presence of the police or other state provided security.”[75] Similarly, lower courts have found sensitive places encompass locations that, “unlike homes, . . . are public properties where large numbers of people, often strangers (and including children), congregate for recreational, educational, and expressive activities.”[76]

These explanations suggest an individual’s “well established . . . right to receive information and ideas”[77] supersedes another’s right to bear arms in public when such places 1) provide or should provide the proper security necessary to diminish the need for defense of self and others and/or 2) serve as a place for expressive activity. Although under current jurisprudence these two elements may be independently sufficient to justify a sensitive place, together they justify a protest’s classification as a sensitive place because the preservation of the protest’s expressive activity is greatly constrained or empowered depending on the state’s failed or proper exercise of its police power, respectively.

Although it is well established that police do not have a duty to protect individuals from private harms,[78] the calculus shifts when expression is at issue because First Amendment doctrine has come to demand an unpopular speaker’s protection from the hostile audience and the heckler’s veto.[79] Protests and demonstrations are entitled to police protection to ensure the speaker’s ability to speak. However, in Charlottesville and in other similar instances, the state is unable to secure the speaker’s rights, their protection, or the protection of their listeners because an individual’s “self-defense” right challenges the state’s monopoly on violence.[80] As the Fourth Circuit has recognized, “public safety interests often outweigh individual interests in self-defense.”[81] When we are left with situations in which the exercise of “self-defense” rights castrates the state’s ability to maintain order or protect and serve the public safety interest, an individual’s right to self-defense should be secondary to the police power of the state and to the public interest in freedom of expression.

The expressive rights of demonstrators and protesters alike are severely curtailed when firearms are permitted at demonstrations because disagreement could result in death. As a result, protest sites may be rightly classified as “sensitive places” insofar as the state provides security (and may indeed have a duty to do so) and the traditionally-protected unfettered exchange of ideas demands the minimization of harm to speakers and listeners.

IV. Conclusion

Guns don’t speak. Although they may command attention and fear, the objects themselves are not inherently expressive. Even if they were used in expressive means, the messages conveyed could reasonably fall outside of First Amendment protection. In Charlottesville and around the country, First Amendment protections should not be extended to rights protected under the Second Amendment because the countervailing public safety interests and interest in encouraging expressive activities demand public protests become “sensitive places” excluded from the right to bear arms. Although unloaded guns may seem more expressive to those aware of their benign state, reasonable observers will perceive the threat of harm just as they would if the gun were loaded. This perception chills expressive freedoms and silences worthwhile debate. Furthermore, the policy justification for carrying a firearm in public for the lawful purpose of self-defense loses credence in light of the state’s obligation to protect the speakers, the listeners, and the municipality writ large during permitted demonstrations. At public protests like those in Charlottesville and across the country, protection should be satisfied by the state; therefore, sacrificing expressive freedoms for firearms is unacceptable.

 

 

*J.D. Candidate 2019, University of Virginia School of Law. I would like to thank members of the Virginia Law Review for the opportunity to discuss the events of August 11 and 12 in Charlottesville and collectively seek a way forward. I am grateful to Michael Dooley for his helpful critiques through the editing process. I am thankful for my parents’ support and encouragement, for DW for reminding me why I came, KKF for the wake-up call(s), and CS, ME, and LAH for their friendship and support. Errors are my own. 

[1]Sheryl Gay Stolberg, McAuliffe Counters Critics of Police Response to Charlottesville Violence, N.Y. Times (Aug. 13, 2017), https://web.archive.org/web/20170813232231/‌https://www.nytimes.com/2017/08/13/us/charlottesville-protests-white-nationalists.html (quoting Virginia Governor Terry McAuliffe).

[2]Interview by Elle Reeves with Chris Cantwell, white supremacist and “Unite the Right” attendee, in Charlottesville, Va. (Aug. 12, 2017), https://www.vox.com/identities/2017/8/‌16/‌16155942/charlottesville-protests-nazis-vice.

[3]Emma Bowman & Wynne Davis, Charlottesville Victim Heather Heyer ‘Stood Up’ Against What She Felt Was Wrong, Nat’l Pub. Radio (Aug. 13, 2017), http://www.npr.org/‌sections/thetwo-way/2017/08/13/543175919/violence-in-charlottesville-claims-3-victims.

[4]554 U.S. 570, 626–27 (2008).

[5]United States v. O’Brien, 391 U.S. 367, 376 (1968).

[6]Spence v. Washington, 418 U.S. 405, 409 (1974).

[7]Id. at 410–11.

[8]491 U.S. 397, 404–06 (1989) (finding flag burning was protected under the First Amendment though the flag itself was not entitled to automatic protection).

[9]393 U.S. 503, 507–511 (1969) (finding wearing armbands in protest constituted protected speech).

[10]Nordyke v. King, 319 F.3d 1185, 1189 (9th Cir. 2003).

[11]Tyler Yzaguirre, Why Gun Owners Should Use the First Amendment to Protect Open Carry, The Hill (Aug. 8, 2017), https://perma.cc/L4WW-Q2DK.

[12]Nordyke, 319 F.3d at 1190 (citing Spence, 418 U.S. at 410–11).

[13]Id.

[14]Baker v. Schwarb, 40 F. Supp. 3d 881, 895 (E.D. Mich. 2014).

[15]Northrup v. City of Toledo Police Div., 58 F. Supp. 3d 842, 848 (N.D. Ohio 2014), aff’d in part, rev’d in part on other grounds, 785 F.3d 1128 (6th Cir. 2015).

[16]2013 WL 4494481, at *1 (D. Conn. May 15, 2013).

[17]Id.

[18]Id. at *9 (discussing First Amendment claim under §1983).

[19]See Virginia v. Black, 538 U.S. 343, 362–63 (2003) (upholding Virginia’s ban on cross burning with intent to intimidate despite its expressive nature because of cross burning’s “long and pernicious history as a signal of impending violence”).

[20]Spence, 418 U.S. at 410–11.

[21]Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (finding a prohibition on sleeping in a public park to convey the plight of homelessness was constitutional in part because protests retained “ample alternative channels” to communicate their intended message).

[22]Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983).

[23]Clark, 468 U.S. at 293.

[24]United States v. O’Brien, 391 U.S. 367, 376–77 (1968).

[25]Ward v. Rock Against Racism, 491 U.S. 781, 792 (1989) (finding “[t]he principle justification for the sound-amplification guideline is the city’s desire to control noise levels,” not expression, and is therefore content-neutral).

[26]Hill v. Colorado, 530 U.S. 703, 731 (2000) (finding that a comprehensive statute was “evidence against there being a discriminatory governmental motive,” and that the restrictions amounted to prudent location restrictions, not content restrictions).

[27]Cox v. New Hampshire, 312 U.S. 569, 574 (1941) (“Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people . . . has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend.”).

[28]See Va. Code Ann. § 18.2-282 (2014) (“It shall be unlawful for any person to point, hold[,] or brandish any firearm . . . whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm . . . in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.”). However, statutes criminalizing threatening speech must be interpreted “with the commands of the First Amendment clearly in mind.” Watts v. United States, 394 U.S. 705, 707 (1969).

[29]Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” (citation omitted)).

[30]Cohen v. California, 403 U.S. 15, 21 (1971) (“[T]he mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.”).

[31]See Chaplinsky, 315 U.S. at 572.

[32]See Elonis v. United States, 135 S. Ct. 2001, 2014 (2015) (Alito, J. concurring in part and dissenting in part) (requiring some degree of intent to threaten); Virginia v. Black, 538 U.S. 343, 359 (2003) (emphasizing “fighting words” and threats that are sufficiently particularized to an individual or group of individuals); R.A.V. v. St. Paul, 505 U.S. 377, 390–91 (1992) (striking down a city ordinance which regulated “fighting words” predicated “on the basis of race, color, creed, religion or gender” as viewpoint discrimination); Watts, 394 U.S. at 707–08 (requiring that threats “be distinguished from what is constitutionally protected speech”).

[33]Black, 538 U.S. at 359 (emphasis added).

[34]See Elonis, 135 S. Ct. at 2013–14 (Alito, J., concurring in part and dissenting in part) (emphasis in original) (“[T]he Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say.”).

[35]Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969).

[36]Id. at 447.

[37]Nwanguma v. Trump, 2017 WL 3430514, slip. op. at *3 (W.D. Ky. Aug. 9, 2017) (quoting Bible Believers v. Wayne Cty., 805 F.3d 228, 246 (6th Cir. 2015)), appeal filed, see Brief of Appellants at 2, Nwanguma v. Trump, No. 17-6290 (6th Cir. Dec. 13, 2017).

[38]Brandenburg, 395 U.S. at 447–48.

[39]See, e.g., Keyishian v. Bd. of Regents, 385 U.S. 589, 604 (1967) (finding statutory provisions making treasonable or seditious words or acts grounds for dismissal had a “chilling effect” on expressive freedoms); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 278–80 (1964).

[40]See Sullivan, 376 U.S. at 269 (citing Roth v. United States, 354 U.S. 476, 484 (1957)).

[41]See Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect,” 58 B.U. L. Rev. 685, 690 (1978) (emphasis omitted).

[42]U.S. Const. amend. II.

[43]554 U.S. 570, 592–93, 625 (2008) (emphasis omitted).

[44]Id. at 626.

[45]Id. at 635 (emphasis added).

[46]561 U.S. 742, 767 (2010) (quotation and citation omitted).

[47]Id. at 791.

[48]Heller, 554 U.S. at 626 (declining to opine on the full scope of the Second Amendment); McDonald, 561 U.S. at 859 (Stevens, J., dissenting) (noting how the Court declined to “express an opinion” on “carriage of firearms outside the home”).

[49]864 F.3d 650, 661–64 (D.C. Cir. 2017).

[50]Kachalsky v. County. of Westchester, 701 F.3d 81, 99–100 (2d Cir. 2012) (upholding “proper cause” requirement to concealed carry).

[51]Drake v. Filko, 724 F.3d 426, 439 (3rd Cir. 2013) (upholding “justifiable need” standard to open or concealed carry). 

[52]Woollard v. Gallagher, 712 F.3d 865, 880 (4th Cir. 2013) (upholding a “good-and-substantial-reason requirement” to open or concealed carry).

[53]Wrenn, 864 F.3d at 664 (quoting Peruta v. County of San Diego, 742 F.3d 1144, 1173–75 (9th Cir. 2014), vacated by 824 F.3d 919 (2016) (en banc)).

[54]Heller, 554 U.S. at 592, 634–35.

[55]Moore v. Madigan, 702 F.3d 933, 941 (7th Cir. 2012).

[56]Peruta, 742 F.3d at 1175.

[57]Wrenn, 864 F.3d at 662.

[58]Id. at 664 (quoting Peruta, 742 F.3d at 1173–75).

[59]Heller, 554 U.S. at 626–27 (affirming longstanding prohibitions on the possession of firearms by the mentally ill, felons, etc.).

[60]Peruta v. County of San Diego, 824 F.3d 919, 927 (9th Cir. 2016) (declining to reach the open carry question and instead limiting its decision to the constitutionality of prohibiting concealed carry), cert. denied Peruta v. California, 137 S. Ct. 1995 (2017).

[61]Ann E. Marimow & Peter Jamison, D.C. Will Not Appeal Concealed Carry Gun Ruling to Supreme Court, Wash. Post (Oct. 5, 2017), https://perma.cc/8C6M-FER5.

[62]Heller, 554 U.S. at 628–29 (finding prohibitions against handguns were unconstitutional because they are “overwhelmingly chosen by American society” for the lawful purpose of self-defense and have been “the quintessential self-defense weapon”).

[63]Sheryl Gay Stolberg, Hurt and Angry, Charlottesville Tries to Regroup From Violence, N.Y. Times (Aug. 13, 2017), https://www.nytimes.com/2017/08/13/us/charlottesville-protests-white-nationalists.html?referer=https://t.co/SbvYUNVHOG?amp=1&_r=0 (quoting Virginia Governor Terry McAuliffe). State police dispute the claim that they were unprepared or otherwise intimidated by the demonstrator’s firearms. Arelis R. Hernández, Charlottesville Police Chief Defends Officers, Police Response at Violent Rally, Wash. Post (Aug. 14, 2017), https://perma.cc/SQ25-D4P5.

[64]See Perry v. Sindermann, 408 U.S. 593, 597 (1972) (“[E]ven though a person has no ‘right’ to a valuable governmental benefit . . . the government . . . may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.”). But see Adam B. Cox & Adam M. Samaha, Unconstitutional Conditions Questions Everywhere: The Implications of Exit and Sorting for Constitutional Law and Theory, 5 J. Legal Analysis 61, 67 (2013) (“But an amusing aspect of the unconstitutional conditions doctrine is that there is no doctrine. At least there is no snappy and established test for analyzing unconstitutional conditions questions.”).

[65]See Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (recognizing the right to bodily integrity as part of the “liberty” interest in the Due Process clause).

[66]The “hostile audience” problem is exemplified by Feiner v. New York, where Chief Justice Vinson described the power of the “audience,” in disagreement with the speaker, to effectively silence the speaker by raising their voices, displaying threatening behavior, etc. 340 U.S. 315, 320 (1951).

[67]Heller, 554 U.S. at 626–27.

[68]Id.

[69]Wrenn, 864 F.3d at 662 (quoting Moore v. Madigan, 702 F.3d 933, 940 (7th Cir. 2012)).

[70]Nordyke v. King, 563 F.3d 439, 459–60 (9th Cir. 2009), vacated en banc, 611 F.3d 1015 (9th Cir. 2010) (remanding to the panel to reconsider in light of McDonald).

[71]United States v. Masciandaro, 648 F. Supp. 2d 779, 790–91 (E.D. Va. 2009) (finding prohibitions on guns in national parks are constitutional because it is an area “where large numbers of people, often strangers (and including children), congregate for recreation[]”).

[72]United States v. Dorosan, 350 F. App’x 874, 875–76 (5th Cir. 2009).

[73]DiGiacinto v. Rector and Visitors of George Mason Univ., 704 S.E.2d 365, 370 (Va. 2011) (finding George Mason University “is a school” and “its buildings are owned by the government” and therefore the campus is a “sensitive place” within the meaning of Heller).

[74]United States v. Davis, 304 F. App’x 473, 474 (9th Cir. 2008).

[75]George A. Nation III, The New Constitutional Right to Guns: Exploring the Illegitimate Birth and Acceptable Limitations of This New Right, 40 Rutgers L. J. 353, 414 (2009).

[76]Masciandaro, 648 F. Supp. 2d at 790 (emphasis added).

[77]Stanley v. Georgia, 394 U.S. 557, 564 (1969).

[78]See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005) (declining to find an “interest” in restraining order because police retain discretion as to how to enforce the law); DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195–96 (1989) (holding Due Process Clause confers no affirmative right to governmental aid, even when aid may be necessary to protect life).

[79]See Cox v. Louisiana, 379 U.S. 536, 551 (1965); Gregory v. City of Chicago, 394 U.S. 111, 117–20 (1969) (Black, J., concurring); Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 97 (1972); Forsyth County v. Nationalist Movement, 505 U.S. 123, 134–36 (1992).

[80]See, e.g., Stolberg, supra note 63 (noting how police response in Charlottesville was viewed as flawed and how militia members had access to “better equipment than [the] State Police”).

[81]Masciandaro, 638 F.3d at 470.

Rethinking the Heckler’s Veto After Charlottesville

The violent Charlottesville protests of August 12, 2017, raise one of the more vexing questions of First Amendment law: at what point does a given expression’s tendency to provoke a violent response in listeners justify government intervention against the speaker? Current doctrine provides no clear answer, and even suggests that such intervention may never be justified. This Essay argues that in some cases it is justified, and proposes a modified Brandenburg v. Ohio incitement standard to define when that is. Setting such a standard would remedy the existing asymmetry between the law’s treatment of speech that incites violence and speech that provokes it. It would protect speakers’ rights while providing a cognizable pre-violence point at which authorities could intervene without fear of violating the First Amendment.

Introduction

The Charlottesville Protests

THE weekend that has rendered “Charlottesville” a national byword for white supremacist agitation was planned in advance.[1] It included Friday, August 11’s surprise tiki-torch march on the University of Virginia’s Central Grounds[2] and the major gathering near the city’s downtown mall on August 12.[3] The focus of this Essay will be on the events of August 12.

Jason Kessler, the principal organizer of the “Unite the Right” rally,[4] applied in May 2017 for a permit to hold his event at the recently renamed Emancipation Park on Saturday, August 12.[5] The City of Charlottesville gave him the permit a few weeks later. The City subsequently granted permits to a number of opposition groups to hold assemblies of their own within a few blocks of the Park.[6] After an attempt by the City of Charlottesville to revoke Kessler’s permit, Judge Glenn Conrad of the Western District of Virginia granted Kessler an injunction, finding that Kessler’s claim that the revocation and modification of the permit was an impermissible content-based restriction on speech would likely succeed on the merits.[7]

Unite the Right was intended to begin at noon, but white nationalist protesters and counterprotesters began gathering near Emancipation Park around eight in the morning.[8] Among the attendees on both sides were people armed and armored with shields, helmets, and sticks. A contingent of self-proclaimed militiamen arrived as well, wearing camouflage and carrying pistols and rifles. They told reporters they were there to keep the peace. Some of the protesters openly carried guns too.[9] Still, at this point early in the morning, one firsthand observer described the atmosphere as “calm,”[10] with a group of twenty or thirty clergy and other counterprotesters linking arms and singing. Then, sometime around 10:30 a.m., skirmishes broke out between the groups. According to one police officer, part of the problem was that the protesters went back on a plan to enter the park from only one side, instead coming in from all directions and clashing directly with counterprotesters.[11] As a result some of the protesters and the police were behind metal barricades in the Park itself, while on Market Street in front of the Park, members of both sides directly confronted each other, reportedly with no police intervention.[12] As the groups neared each other, various members of the crowd exchanged chants and insults. The clergy sang “This Little Light of Mine,” while the white supremacists yelled “Our blood, our soil!”[13] Counterprotesters shouted “Fuck you, Nazis!” while the protesters replied “Fuck you, f——-s!”[14]

Shortly before 11:00 a.m., a large group of white nationalists approached the Park along Market Street. A group of counterprotesters formed a line across the street in order to block their path. The protesters then charged the line, swinging their sticks, punching, and spraying mace and pepper spray. A number of the counterprotesters fought back in the same manner. Participants threw rocks, water bottles, and balloons filled with paint, ink, or urine as “the air was filled with the sounds of fists and sticks against flesh.”[15] At 11:06 a.m., the City of Charlottesville and Albemarle County jointly declared a local emergency.[16] Twenty-two minutes later, Governor Terry McAuliffe declared a state of emergency across the entire Commonwealth.[17]

At the same time, around 11:20 or 11:30 a.m.,[18] the police declared the gathering to be an unlawful assembly,[19] and by about 11:40 a.m. were dispersing the crowds, with the white nationalists migrating toward McIntire Park to continue the demonstration.[20] Scattered fights and verbal exchanges continued in surrounding areas, but the main rally had been shut down before it was even supposed to begin.[21] Tragically, it was after the dispersal, when relative calm had returned to the city, that James Alex Fields, Jr., rammed his car into a crowd of pedestrians, killing Heather Heyer and injuring nineteen others.[22] Later that evening, two state police officers who were monitoring the city, Lieutenant H. Jay Cullen and Trooper Berke M.M. Bates, died when their helicopter crashed.[23]

*  *  *

There are many questions to be asked after a day like August 12. Perhaps the most fundamental, at least from a legal perspective, is the one Charlottesville Mayor Mike Signer asked on August 13: “How do you reconcile public safety and the First Amendment?”[24] The object of this Essay is to provide one incomplete answer to this question in the doctrinal area of First Amendment law known as the “heckler’s veto”[25] or “hostile audience”[26] problem.

The heckler’s veto or hostile audience problem arises when speech is met with an audience that is likely to turn violent on the speaker—in such a scenario, can the government shut down the speech, or must it allow the speaker to continue? This problem is vexing and active. Commentators point to recent events like University of California, Berkeley’s cancellation of a speech by Milo Yiannopoulos[27] and other incidents on college campuses[28] to decry the desecration of the freedom of speech,[29] while government institutions puzzle over how to manage security costs at controversial events consistent with the First Amendment.[30]

In this Essay I argue that in order to better balance public security with freedom of speech, courts should analyze the hostile audience problem in accordance with the template set out in the incitement test of Brandenburg v. Ohio.[31] The Brandenburg standard, discussed in more detail below,[32] holds that the government may not proscribe speech advocating violence or unlawful action unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[33] The Brandenburg test, which has served as a durable and speech-protective First Amendment principle since it was first articulated, should serve as the model for a clearer standard in the domain of the heckler’s veto, as follows: the government may not proscribe violence-provoking expression unless it is directed to provoking imminent violence and is likely to produce violence.

In order to establish the viability of the proposed approach, the remainder of this Essay proceeds in two Parts. Part I traces three relevant free speech doctrines: the hostile audience problem, “fighting words,”[34] and the incitement test of Brandenburg. Part II argues that because of the current state of the heckler’s veto and fighting words doctrines, there is an asymmetry between the treatment of speech that is directed toward provoking a violent response in others and the treatment of speech that advocates the use of violence. The normative case for revising the present standard centers on the analytical invalidity of this asymmetry as well as practical concerns. Part II also looks to the three most relevant events of the Charlottesville unrest—Judge Conrad’s court order, the insults traded between protesters and counterprotesters on the day of the rally, and the police department’s declaration of unlawful assembly—in order to determine the extent to which the proposed standard might have influenced the course of events. In doing so, I aim to confront directly that most difficult question: how can public safety be reconciled with the First Amendment?

I. Tracing the Doctrines

First Amendment jurisprudence contains a multitude of overlapping yet distinct doctrines.[35] This Essay focuses on three in particular: the hostile audience problem, fighting words, and the incitement test of Brandenburg v. Ohio.

A. Hostile Audience Problem or the Heckler’s Veto

The idea of the heckler’s veto was first conceptualized by Professor Harry Kalven,[36] who described the problem as follows:

A speaker may threaten a breach of peace in two ways, either by inciting to violence or by irritating an audience so that it responds with violence. In the second case, in which the audience is hostile, a difficult issue is posed. Apart from the “fighting words” point of the Chaplinsky case, are there other circumstances in which the police, in order to keep tranquility, are entitled to arrest the speaker rather than the audience? The problem is a genuine puzzle either way it is decided. If the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve. But the opposing view, that the police must go down with the speaker, has its own obvious difficulties, too.[37]

The heckler’s veto, which may also be classified as the “hostile audience” problem,[38] is indeed difficult, as evidenced by the divergent outcomes of the two canonical cases in the area: Terminiello v. Chicago[39] and Feiner v. New York.[40]

In Terminiello, the United States Supreme Court overturned the disorderly conduct violation[41] of the speaker, a polarizing public figure and recently defrocked Catholic priest.[42] Arthur Terminiello addressed a crowded hall filled with both supporters and detractors. The hall was surrounded on the outside by a much larger group of protesters, some of whom were throwing projectiles through windows and at police officers.[43] As he addressed the audience, Terminiello repeatedly referred to his detractors as “scum” and accused them of plotting to violently overthrow the United States, in addition to making numerous anti-Semitic remarks.[44]

Justice William O. Douglas, writing for a five-Justice majority, found that, although the Illinois state courts had held that Terminiello’s speech could be proscribed as “fighting words” under Chaplinsky v. New Hampshire,[45] because part of the jury instruction indicated that Terminiello could be found guilty if he was engaging in conduct that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance,”[46] his conviction was constitutionally void.[47] Justice Douglas wrote, “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”[48]

Terminiello’s speech could not be censored “unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”[49] Therefore, even if in fact Terminiello’s speech had been producing a clear and present danger, the possibility that he was convicted for merely stirring the public to anger and creating unrest rendered his penalization void.

Contrast this holding with the one in Feiner, decided two years later. Irving Feiner, a progressive college student who was speaking through a loudspeaker on a crowded street corner, made numerous inflammatory political statements.[50] He was surrounded by a restless crowd, among whom were people vocally threatening to attack him.[51] The police asked him to step down and stop speaking. He ignored them and continued talking until finally one officer arrested him.[52] Feiner was convicted of the misdemeanor of disorderly conduct and received a thirty-day jail sentence.[53] In this case a six-Justice majority found that Feiner’s speech was not protected. Chief Justice Fred M. Vinson, for the majority, acknowledged that the government “may not unduly suppress free communication of views . . . under the guise of conserving desirable conditions.”[54] Still, the Court found:

It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace.[55]

Justice Hugo Black, writing in dissent, was appalled by this holding, characterizing it as “a long step toward totalitarian authority.”[56] Black argued that rather than arresting the speaker, the police first should have made “all reasonable efforts to protect him[,]” including, if necessary, arresting hecklers who were threatening violence.[57] Only once such efforts were exhausted would it be acceptable for police to silence the speaker.

Feiner has never been overruled, but in the years since it was decided no case has followed it in upholding a speaker’s conviction.[58] Indeed, a number of post-Feiner cases make it appear as though Justice Black’s dissent has carried the day.[59] The rule for hostile audiences, therefore, appears to be that police and localities must make reasonable efforts to control the hecklers and protect the speaker, only stopping the speaker “if crowd control is impossible and a threat to breach of the peace imminent.”[60] The validity of this framing, however, is open to debate, as no Supreme Court case since Feiner has directly addressed in what circumstances it is acceptable to shut down speech in order to preserve security. Indeed, the direction of the Court has been to require localities to protect speakers regardless of cost.[61] Thus it is at a minimum doubtful whether lower courts and localities may follow Feiner and allow speech to be prevented on the basis of a hostile reaction. Some authorities go further and suggest that Feiner may no longer be good law at all.[62]

B. Fighting Words

In Chaplinsky v. New Hampshire, the Court gave its canonical definition of “fighting words”: words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[63] Such speech, along with “the lewd and obscene, the profane, [and] the libelous” is not protected because, the Court reasoned, it is of such low social value that its benefits are outweighed by the social interest in preserving order and morality.[64] The fighting words doctrine, it would seem, is a good answer to the question of the extent to which speech can be restricted because of the violent reaction it provokes in others: if it is a fighting word, then it is not entitled to constitutional protection, and therefore the government may restrict it in the interest of public safety.[65]

But, similar to what happened to Feiner,[66] since Chaplinsky was decided in 1942 the Court has not once upheld a conviction under the fighting words doctrine.[67] Indeed, the case law demonstrates a steady retreat from Chaplinsky’s self-assured classification of fighting words as an unprotected category.

In Cohen v. California, the Court assessed the scope of the fighting words doctrine as it applied to profane language printed on a jacket.[68] In finding that the message did not constitute fighting words (and more generally, was protected by the First Amendment), the Court put a series of new glosses on Chaplinsky, finding that, in order to be considered fighting words, the message on the jacket would need to be directed at an individual listener, and subject to the reasonable interpretation that the message was a “direct personal insult.”[69] Because the message on Paul Cohen’s jacket was not aimed at anyone in particular, and could not be interpreted as a direct insult, it lay outside the newly formulated fighting words doctrine.[70]

The year after Cohen, the Court decided four more cases that further call into question the continued relevance of the fighting words doctrine.[71] The first of these, Gooding v. Wilson, involved the following words spoken to a police officer at an antiwar rally: “White son of a bitch, I’ll kill you.”; “You son of a bitch, I’ll choke you to death.”; and “You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.”[72] The Court overturned the speaker’s conviction for violating a Georgia law making it a misdemeanor to use “opprobrious” language “tending to cause a breach of the peace,”[73] finding the statute overbroad and therefore facially unconstitutional under the First Amendment.[74] The other three cases were resolved similarly.[75]

In light of these and subsequent decisions, the extent to which the fighting words doctrine carves out any room for governments to regulate violence-provoking speech must be considered gravely in doubt.[76] If the fighting words doctrine is to serve as a limitation on how far speech can go before it is subject to regulation, then there is in effect almost no limit at all.

C. The Incitement Test of Brandenburg v. Ohio

In Brandenburg, a Ku Klux Klan leader was caught on film addressing a group of supporters.[77] In the racially charged speech, he made vague threats about taking “revengeance” on the U.S. government for its efforts to “suppress the white.”[78] As a result he was convicted under an Ohio statute criminalizing advocacy of “the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”[79] The Court struck down the statute for violating the First Amendment, in the process formulating a new standard for advocacy of violence:

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.[80]

Thus for violence-advocating speech to be proscribable, there must be intent (“directed to”), imminence, and likelihood of actual violence.[81] This kind of advocacy is to be distinguished from “abstract teaching [of] the moral propriety or even moral necessity” of violence.[82] Because Ohio’s statute did not make this important distinction, the Klansman’s conviction could not be upheld.[83]

Subsequent cases demonstrate how Brandenburg is applied. In Hess v. Indiana, for example, a group of antiwar protesters took to the streets, blocking traffic.[84] Law enforcement arrived and the protesters moved to the sidewalks on either side of the road, but as they did so one protester allegedly shouted, to no one in particular, “We’ll take the fucking street later.”[85] The speaker was arrested and convicted under a disorderly conduct statute for these words.[86] In reversing the conviction, the Court found that the statement “could be taken as counsel for present moderation” or, at worst, “nothing more than advocacy of illegal action at some indefinite future time.”[87]

NAACP v. Claiborne Hardware Co. took the imminence requirement a step further.[88] In that case, a civil rights activist urging other members of the movement to adhere to a boycott of white-owned businesses told a crowd of supporters, in the midst of a lengthy and passionate speech, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”[89] The Court, in applying Brandenburg to the statement, found that because the speaker did not actually authorize, ratify, or directly threaten violence, and his rhetorical appeals did not in fact incite lawless action, his speech was protected.[90]

Hess and Claiborne emphasize the importance of the imminence requirement.[91] In Hess, the speaker’s use of temporally indefinite language (“later”) was enough for the Court to find that imminence was not met,[92] and in Claiborne the lack of actual violence immediately following the speech, especially in the context of an emotional plea to supporters, meant the expression was protected.[93] Thus, there is a high threshold for imminence under Brandenburg, resulting in a very speaker-protective doctrine.[94]

II. Revising the Violence-Provoking Speech Standard and Applying It to the Events in Charlottesville

A. A Better Approach

What separates Brandenburg v. Ohio from whatever remains of Feiner v. New York and Chaplinsky v. New Hampshire is the clarity of the standard enunciated. While the Brandenburg test even protects speakers who believe in violence and advocate for it in an abstract or rhetorical manner, it also clearly allows for restrictions at the extremes.[95] For example, if a radical anarchist instructed a loyal crowd to pick up whatever projectiles they could find and immediately launch them at passersby, the police could certainly intervene to stop the speech; intent, imminence, and likelihood are easily met. Thus Brandenburg serves the dual purposes of ensuring wide latitude for speakers while providing adequate notice of when speech may cross the boundaries of constitutional protection.

As the above discussion in Sections I.A and I.B demonstrates, there is at present no comparably clear outer limit for violence-provoking speech. In theory, after Cohen v. California, a speaker who was deliberately trying to provoke a violent response from a listener could be subject to speech restriction.[96] But in the absence of further elaboration, it is difficult to see how such actual intent could be proven, especially given the unlikelihood that a speaker would truly intend for another person to attack her.

This difficulty suggests that, as with Brandenburg, the appropriate prong to focus on is imminence.[97] Focusing on imminence allows governments to make assessments about public security in a way that will allow for as much speech as possible, because even highly inflammatory speech will be allowed to continue up to the point where violence is imminent. Thus, the proposed hostile audience standard is that violence-provoking speech is to be protected unless it is directed to[98] provoking imminent violence and is likely to precipitate violence.

Imagine, for instance, that a neo-Nazi group entered a predominately Jewish neighborhood whose residents included a high number of Holocaust survivors and descendants of Holocaust victims.[99] The demonstrators wear Nazi regalia, carry symbols of Nazism, and direct deeply wounding and insulting anti-Semitic language at residents. For the purposes of this hypothetical, let us imagine that these insults are as heinous as possible, referencing real, brutal crimes that the listeners themselves experienced, or that directly affected the listeners’ family members. It is possible, in such a scenario, that even listeners with peaceful intentions and dispositions might temporarily be unable to control themselves, and react with hostility. Under the proposed standard, the police could intervene and shut down the Nazis’ speech. This is so because the expression is directed to[100] provoking imminent violence and such violence is very likely to occur. Imminence and likelihood are present given the directness of the communication as well as the broader context of extreme antipathy between speaker and listener. Although the police in such circumstances would of course be justified in restraining the hostile audience from attacking the demonstrators, they would also be allowed to prevent the demonstrators from continuing their violence-provoking speech.

B. Would the New Standard Have Made a Difference?

1. Judge Conrad’s Preliminary Injunction

If the new violence-provoking speech standard were correctly applied, it would have no effect on the outcome of enjoining the revocation of the protest permit in Kessler v. City of Charlottesville.[101] As the court in that case noted, the city revoked Kessler’s permit, but not the counterprotesters’, which provided evidence that the “eleventh-hour” revocation was a based on the content of Kessler’s message.[102] City Councilmembers’ anti-Kessler social media posts provided further support for this conclusion.[103] As a content-based restriction, the permit modification would be subject to strict scrutiny.[104] Based on the factual circumstances, the City had very little hope of showing that its action was narrowly tailored to further a compelling state interest.

With the benefit of hindsight, Judge Conrad’s finding that “there is no evidence to support the notion that many thousands of individuals are likely to attend the demonstration”[105] seems to ignore certain realities, but his legal conclusions were surely sound. The proposed hostile audience standard does not change that in the slightest. Courts should still scrutinize government actions that appear content-based, and the high imminence threshold of the standard means that ex ante suppression through a permit change would remain a virtual nonstarter.[106]

2. Verbal Exchanges on August 12

Among the words the protesters were reported to have spoken at the rally were: “Our blood, our soil!”[107] “Fuck you, f——-s!”; “Go the fuck back to Africa!”; “Fuck you, n——-!”; and “Dylann Roof was a hero!”[108] The counterprotesters, in turn, are recorded as saying: “Fuck you, Nazis!” and “Go the fuck home!”[109] Any of these statements would almost certainly have been considered fighting words by the Chaplinsky-era Court, which upheld a conviction for someone who said “damned Fascist.”[110] Indeed, the white supremacists’ statements in particular seem the very definition of violence-provoking speech. Nonetheless, any statute that attempts to proscribe this speech would have to be very narrowly tailored so that (a) it could be applied only to truly violence-provoking (under the proposed intent-imminence-likelihood standard)—and therefore unprotected—speech[111] and (b) it did not discriminate based on content within the unprotected category.[112] A revitalized violence-provoking speech standard makes a statute that could bar and permit state intervention in these circumstances theoretically possible, while under current doctrine this possibility is doubtful.

On the other hand, although arrest under a statute would likely raise problems under numerous areas of free speech law, police intervention through removal or detention of speakers without any arrests could be possible upon the utterance of some of these insults.[113] The fact that in Charlottesville many of these verbal attacks were immediately followed by physical clashes suggests that violence was in fact imminent and likely. Thus, upon hearing these exchanges and observing the scene, under the proposed standard, police might have intervened sooner and prevented physical confrontation.

3. Declaration of Unlawful Assembly

On August 12, after street violence had been under way for about an hour, the police declared that the gathering at Emancipation Park and the surrounding streets was unlawful under Section 18.2-406 of the Virginia Code.[114] This section reads, in full:

Whenever three or more persons assembled share the common intent to advance some lawful or unlawful purpose by the commission of an act or acts of unlawful force or violence likely to jeopardize seriously public safety, peace or order, and the assembly actually tends to inspire persons of ordinary courage with well-grounded fear of serious and immediate breaches of public safety, peace or order, then such assembly is an unlawful assembly. Every person who participates in any unlawful assembly shall be guilty of a Class 1 misdemeanor. If any such person carried, at the time of his participation in an unlawful assembly, any firearm or other deadly or dangerous weapon, he shall be guilty of a Class 5 felony.[115]

Interestingly enough, the current version of this statute was amended after a 1971 Virginia Supreme Court case held the previous version unconstitutionally overbroad because it included “assemblies that pose no clear and present danger.”[116] Thus the current version, enacted in 1975, added a likelihood requirement (“likely to jeopardize seriously[117] public safety”) and, with the language “tends to inspire persons of ordinary courage with well-grounded fear of serious and immediate breaches of public safety,” an imminence requirement as well. As such, Virginia’s unlawful assembly statute appears to conform with the constitutional requirements of Brandenburg, and indeed the Eastern District of Virginia later found that “[o]n its face, Section 18.2-406 does not impermissibly infringe upon . . . first amendment rights.”[118]

Under this Essay’s proposed approach, this statute might have been invoked earlier, since the police declared unlawful assembly after violence had already broken out. The current wording of the statute does not require the police to wait for the commission of illegal acts for an assembly to be declared unlawful, but the violence-provoking standard would allow the police to consider both the actions and the words spoken by those assembled, in the context of the imminence and likelihood of violence, to determine when to break up the gathering.

On August 12, this might have happened as soon as protesters and counterprotesters faced each other directly on Market Street and exchanged insults. The words themselves would not have been enough to show imminence or likelihood of violence, but the physical nearing of the groups and the possession of weapons, combined with the virulence of the epithets, could have provided a basis for declaration of unlawful assembly. Setting out a violence-provoking standard would give police the confidence that in such extreme cases, intervention could happen sooner rather than later. It would also provide notice to speakers that both actions and language of escalation could lead to a premature end to their expressive activity.

4. A Road Not Taken: Disorderly Conduct

Virginia’s disorderly conduct statute, Virginia Code Section 18.2-415,[119] presents another avenue that Charlottesville police might have taken to prevent violence.[120] Some of its language tracks the proposed violence-provoking speech test.[121] Although it prohibits “conduct having a direct tendency to cause acts of violence” by those at whom the conduct is directed, the statute also makes clear that this conduct “shall not be deemed to include the utterance or display of any words.”[122] Virginia courts have confirmed that any application of Section 18.2-415 to speech would be unconstitutional.[123] Under the proposed violence-provoking speech standard, a disorderly conduct statute that included the intent, imminence, and likelihood requirements could constitutionally be applied to words in addition to actions.

Conclusion

Revitalizing a test whereby violence-provoking speech could, under the appropriate circumstances, be unprotected would not likely effect a revolution in the operation of the First Amendment. But it would provide law enforcement and speakers with a workable set of boundaries allowing for prevention of needless violence.

When racist agitation turns to civil unrest and ultimately to tragedy, it is rational to ask what can be done to prevent it from happening again. The answer outlined here is far from complete, but it is at least a first step toward reconciling public safety with the freedom of speech.

 

 

*J.D. Candidate 2018, University of Virginia School of Law. I am grateful to Clayton Bailey, Michael Dooley, Martha Durkin, Victoria Granda, Laura Horley, Professor Leslie Kendrick, John Leonardo, Brandon Newman, and Dan Richardson for useful guidance, edits, and feedback on this Essay. All opinions and errors are my own.

[1]Kessler Discusses KKK, Unite the Right Rallies and His Political Beliefs, Daily Progress (July 11, 2017), https://perma.cc/92QL-P958.

[2]Univ. of Va. Police Dep’t, Timeline: August 11, 2017 (Sept. 11, 2017), https://perma.cc/‌F838-J5HJ.

[3]Joe Heim, Recounting a Day of Rage, Hate, Violence and Death, Wash. Post (Aug. 14, 2017), https://perma.cc/RTD5-263K.

[4]S. Poverty L. Ctr., Jason Kessler, https://perma.cc/5TCZ-UFXK (last visited Jan. 13, 2018).

[5]Kessler v. City of Charlottesville, No. 3:17-CV-00056, slip op. at 1 (W.D. Va. Aug. 11, 2017). Emancipation Park was previously called Lee Park, and the protests were inspired by opposition to the City’s renaming of the park and its plans to remove its prominent statute of Robert E. Lee. See id.

[6]Id. at 1–2.

[7]Id. at 3.

[8]I rely primarily on the Washington Post’s timeline of events, Heim, supra note 3, but also the following: Anna Higgins et al., ‘Unite the Right’ Rally, Protests in Downtown Charlottesville Turns Deadly, Cavalier Daily (Aug. 13, 2017), https://perma.cc/5CLS-64W7; Michael Patrick Leahy, Timeline Leading to Declaration of Unlawful Assembly at Emancipation Park Rally in Charlottesville, Virginia on August 12, Breitbart (Aug. 16, 2017), https://perma.cc/25CA-SFAM; Elliott C. McLaughlin, Charlottesville Rally Violence: How We Got Here, CNN (Aug. 14, 2017, 1:25 PM), https://perma.cc/PYS5-2UYS; Hawes Spencer, A Far-Right Gathering Bursts into Brawls, N.Y. Times (Aug. 13, 2017), https://www.nytimes.com/2017/08/13/us/charlottesville-protests-unite-the-right.html; and A Timeline of the Deadly Weekend in Charlottesville, Virginia, ABC 6 Action News (Aug. 14, 2017), https://perma.cc/Z555-7DTD. The factual accounts do not differ substantially, but do have different points of emphasis and levels of detail.

[9]One of whom, video later showed, actually discharged the firearm in the direction of counterprotesters. At the time, the police did not take any action, but the man has since been arrested. Carla Herreria, Video Shows Man Shooting at Crowd During Charlottesville Rally, with No Police Response, Huffington Post (Aug. 26, 2017, 11:38 PM), https://perma.cc/T8UQ-CSFD.

[10]Spencer, supra note 8.

[11]Heim, supra note 3.

[12]Sheryl Gay Stolberg, Hurt and Angry, Charlottesville Tries to Regroup from Violence, N.Y. Times (Aug. 13, 2017), https://www.nytimes.com/2017/08/13/us/charlottesville-protests-white-nationalists.html; A.C. Thompson, Police Stood by as Mayhem Mounted in Charlottesville, ProPublica (Aug. 12, 2017, 11:00 PM), https://perma.cc/NQV6-GG8E.

[13]Heim, supra note 3.

[14]Id.

[15]Spencer, supra note 8.

[16]Albemarle Cty., Local Emergency Declared by Charlottesville and Albemarle County, 979 INFO Line Activated (Aug. 12, 2017), https://perma.cc/E3KS-MHN3. Local government declared the emergency pursuant to Section 44-146.21 of the Virginia Code. Id. This Section allows localities facing disaster or emergency to “control, restrict, allocate or regulate the use, sale, production and distribution of food, fuel, clothing and other commodities, . . . enter into contracts and incur obligations necessary to combat such threatened or actual disaster, protect the health and safety of persons and property and provide emergency assistance to the victims of such disaster, and proceed without regard to time-consuming procedures and formalities prescribed by law.” Va. Code Ann. § 44-146.21(C) (2013).

[17]Va. Exec. Order No. 66 (2017), https://perma.cc/VJA8-9YSD; Governor Terry McAuliffe, Governor McAuliffe Statement on Emergency Declaration in Response to Violence in Charlottesville (Aug. 12, 2017), http://governor.virginia.gov/newsroom/‌newsarticle?articleId=20924. Governor McAuliffe exercised this authority under Virginia Code Section 44-146.17. See Va. Exec. Order No. 66, supra, at 1. The Executive Order mandated, among other measures, the deployment of the Virginia National Guard and Virginia Defense Force. See id. at 2–6.

[18]The Washington Post’s Joe Heim quotes Virginia Secretary of Public Safety and Homeland Security Brian Moran as saying that the unlawful assembly was declared at 11:22 a.m., Heim, supra note 3, while Breitbart’s Michael Patrick Leahy quotes Albemarle County Director of Communications Lee Catlin as stating that the unlawful assembly was declared at 11:32 a.m. Leahy, supra note 8.

[19]See Va. Code Ann. § 18.2-406 (2014).

[20]Heim, supra note 3; Leahy, supra note 8.

[21]Heim, supra note 3; see also Laura Wamsley, Charlottesville Violence Highlights Cities’ Struggle To Balance Rights and Safety, Nat’l Pub. Radio (Aug. 14, 2017, 6:43 PM), http://www.npr.org/sections/thetwo-way/2017/08/14/543462419/charlottesville-violence-highlights-cities-struggle-to-balance-rights-and-safety (“Think of this . . . . Not one window was shattered, not one ounce of property damage, not one shot fired, and not one person went to the hospital, except for the 19 who were hit by a car terrorist. Which, you can’t, you know—there’s no preparation’s [sic] that’s gonna prepare for some nut, some murderer, who’s going to turn his car into a weapon and run through a crowd.” (quoting Virginia Governor Terry McAuliffe)).

[22]Heim, supra note 3 (reporting that the crash happened around 1:10 p.m.).

[23]Id.

[24]Wamsley, supra note 21 (quoting Charlottesville Mayor Mike Signer).

[25]See Harry Kalven, Jr., The Negro and the First Amendment 140–41 (1965); Ruth McGaffey, The Heckler’s Veto: A Reexamination, 57 Marq. L. Rev. 39, 39–41 (1973).

[26]See Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.3.3.3, at 1059 (5th ed. 2015); Daniel A. Farber, The First Amendment 113–16 (4th ed. 2014); Steven H. Shiffrin et al., The First Amendment 144–48 (6th ed. 2015).

[27]Thomas Fuller & Christopher Mele, Berkeley Cancels Milo Yiannopoulos Speech, and Donald Trump Tweets Outrage, N.Y. Times (Feb. 1, 2017), https://www.nytimes.com/2017/‌02/01/us/uc-berkeley-milo-yiannopoulos-protest.html.

[28]Zach Greenberg, Rejecting the “Heckler’s Veto,” FIRE: Found. for Individual Rts. in Educ. (June 14, 2017), https://perma.cc/TLR9-WFME (listing recent events at Berkeley, Middlebury College, Brown University, and Washington State University as examples of the heckler’s veto); Anemona Hartocollis, University of Florida Braces for Richard Spencer, N.Y. Times (Oct. 17, 2017), https://nyti.ms/2kUmlTk (discussing the heckler’s veto in relation to the planned appearance of alt-right figure Richard Spencer at the University of Florida).

[29]See, e.g., Spencer Brown, UC Berkeley: Where Free Speech Dies, Violence Rewarded. Again., The Hill (Apr. 20, 2017, 3:30 PM), https://perma.cc/R978-AHB7; Hartocollis, supra note 28; Walter Olson, The ACLU Yields to the Heckler’s Veto, Wall St. J. (Oct. 24, 2017, 6:31 PM), https://www.wsj.com/articles/the-aclu-yields-to-the-hecklers-veto-1508884285; Jeff Sessions, Att’y Gen., U.S. Dep’t of Justice, Remarks at Georgetown University Law Center (Sept. 26, 2017).

[30]See, e.g., Teresa Watanabe, UC, Roiled by 1st Amendment Controversies, to Launch National Free Speech Center, L.A. Times (Oct. 26, 2017, 3:00 AM), https://perma.cc/M6D8-HNPG (discussing how the law surrounding the costs of security is unclear).

[31]395 U.S. 444, 447 (1969).

[32]See infra Section I.C.

[33]Brandenburg, 395 U.S. at 447 (emphasis added).

[34]Fighting words are those words that have been found to be of low social value that tend to incite a breach of the peace by their utterance. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942); see also infra Section I.B (discussing the fighting words doctrine as it relates to the hostile audience problem).

[35]See Gresham v. Rutledge, 198 F. Supp. 3d 965, 969 n.10 (E.D. Ark. 2016) (“[M]odern First Amendment jurisprudence contains a plethora of doctrinal formulas[.]” (alterations in original) (quoting 1 Rodney A. Smolla, Smolla & Nimmer on Freedom of Speech § 2.50 (3d ed. 1996))); see also 1 Rodney A. Smolla, Smolla & Nimmer on Freedom of Speech § 2:2 (3d ed. 1996) [hereinafter Smolla & Nimmer] (“Contemporary free speech jurisprudence is a befuddling array of theories, methods, formulas, tests, doctrines and subject areas.”).

[36]Frederick Schauer, Harry Kalven and the Perils of Particularism, 56 U. Chi. L. Rev. 397, 400 (1989).

[37]Kalven, supra note 25, at 140 (emphasis added) (footnote omitted).

[38]See Chemerinsky, supra note 26, § 11.3.3.3, at 1059; Farber, supra note 26, at 113–16; Shiffrin et al., supra note 26, at 144–48.

[39]337 U.S. 1 (1949).

[40]340 U.S. 315 (1951).

[41]337 U.S. at 6. This was a civil offense under Illinois law and resulted in the imposition of a $100 fine. Id. at 12 (Frankfurter, J., dissenting).

[42]See id. at 14–15 (Jackson, J., dissenting).

[43]Id. at 15–16 (Jackson, J., dissenting).

[44]Id. at 17–22 (Jackson, J., dissenting).

[45]315 U.S. 568, 571–73 (1942); see Terminiello, 337 U.S. at 3, 6; infra Section I.B.

[46]Terminiello, 337 U.S. at 3.

[47]This is an early application of the overbreadth doctrine. See Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569, 574 (1987) (“Under the First Amendment overbreadth doctrine, an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face ‘because it is also threatens others not before the court . . . .’” (quoting Brockett v. Spokane Arcades, 472 U.S. 491, 503 (1985))).

[48]Terminiello, 337 U.S. at 4.

[49]Id. Here, the Court is setting the outer bounds of protected speech using the “Clear and Present Danger” test first enunciated in Schenck v. United States, 249 U.S. 47, 52 (1919). Various articulations of this test were in force in the pre-Brandenburg era. See Chemerinsky, supra note 26, § 11.3.2.2–.4, at 1039–48.

[50]Feiner, 340 U.S. at 316–18.

[51]Id. at 317.

[52]Id. at 318.

[53]Id. at 316.

[54]Id. at 320 (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)).

[55]Id. at 321.

[56]Id. at 323 (Black, J., dissenting).

[57]Id. at 326–27 (Black, J., dissenting).

[58]Farber, supra note 26, at 115.

[59]See Gregory v. Chicago, 394 U.S. 111, 111–13 (1969) (overturning the conviction of civil rights marchers because the only part of marchers’ conduct that could be characterized as disorderly was their refusal to obey a police order to disband, and the onlookers were the ones threatening disorder); Cox v. Louisiana, 379 U.S. 536, 550–51 (1965) (overturning a conviction where “[t]he fear of violence seems to have been based upon the reaction” of onlookers, and there was no indication that any of the onlookers threatened violence); Edwards v. South Carolina, 372 U.S. 229, 231–33, 238 (1963) (overturning civil rights protesters’ convictions for disobeying a police order to disperse where “police protection at the scene was at all times sufficient to meet any foreseeable possibility of disorder[,]” and there was no violence or threat of violence); Collin v. Smith, 578 F.2d 1197, 1199, 1201 (7th Cir. 1978) (barring the village of Skokie, Illinois, from preventing or censoring a planned neo-Nazi parade through the town, which was predominately Jewish and counted among its residents a large number of Holocaust survivors); see also Chemerinsky, supra note 26, § 11.3.3.3, at 1061–62 (collecting cases and suggesting that the Court has largely adopted the approach put forth by Justice Black in his Feiner dissent).

[60]Chemerinsky, supra note 26, § 11.3.3.3, at 1062.

[61]See Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134–36 (1992) (striking a city ordinance requiring that demonstrators pay in advance for estimated security costs as based on public reaction to the speech, which “is not a content-neutral basis for regulation”). Citing Terminiello, the Court added: “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” Id. (citing Terminiello, 337 U.S. 1).

[62]Smolla & Nimmer, supra note 35, § 10:41.

[63]315 U.S. at 572.

[64]Id. at 571–72.

[65]For the relationship between racist “hate speech” and fighting words, see, for example, Hadley Arkes, Civility and the Restriction of Speech: Rediscovering the Defamation of Groups, 1974 Sup. Ct. Rev. 281, 313–17; David O. Brink, Millian Principles, Freedom of Expression, and Hate Speech, 7 Legal Theory 119, 140 (2001); Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2355–56 (1989).

[66]See supra Section I.A.

[67]Farber, supra note 26, at 115.

[68]403 U.S. 15, 16, 20 (1971). Paul Cohen wore a jacket that said “Fuck the Draft” into a Los Angeles County courthouse. Id. at 16.

[69]Id. at 20.

[70]Id. The Court also refined Feiner such that, in order to stop a violence-provoking speaker, the government would need to show that the speaker was intentionally provoking a hostile response from listeners. Id. (citing Feiner, 340 U.S. 315; Terminiello, 337 U.S. 1). More broadly, Cohen announced a new paradigm in First Amendment law by “turning the presumptions in Chaplinsky around: instead of presuming that profane or defamatory speech was beneath constitutional protection, [the Court] presumed that the speech was protected and that the burden of proof lay with those who would restrict it.” Arkes, supra note 65, at 316.

[71]Brown v. Oklahoma, 408 U.S. 914 (1972); Lewis v. City of New Orleans, 408 U.S. 913 (1972); Rosenfeld v. New Jersey, 408 U.S. 901 (1972); Gooding v. Wilson, 405 U.S. 518 (1972); see also Farber, supra note 26, at 114 (“[S]ince Chaplinsky, the Court has taken a very narrow view of the fighting words doctrine, to the point where it is no longer clear whether the doctrine retains any vitality.”).

[72]Gooding, 405 U.S. at 519 n.1.

[73]Id. at 519 (citing Ga. Code Ann. § 26–6303 (1933)).

[74]Id. at 527–28.

[75]See Chemerinsky, supra note 26, § 11.3.3.2, at 1055–56.

[76]See, e.g., Texas v. Johnson, 491 U.S. 397, 409–10 (1989) (stressing that fighting words represent a “small class” of conduct); Houston v. Hill, 482 U.S. 451, 461–62 (1987) (discussing breadth that First Amendment affords in directing “verbal criticism and challenge” at police officers). Further circumscribing Chaplinsky is the Supreme Court’s holding in R.A.V. v. St. Paul, 505 U.S. 377, 381 (1992), that even in “unprotected” categories like fighting words and obscenity, government regulation must be content-neutral, except under certain exceptional circumstances. See id. at 383–90. As such, a fighting words statute like the one in R.A.V. would need to be content-neutral or face strict scrutiny. One relevant exception is “[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable.” Id. at 388. This exception has been applied to uphold an ordinance banning cross burning with the intent to intimidate, because if the activity is done with this intent it constitutes a “true threat.” Virginia v. Black, 538 U.S. 343, 357–63 (2003) (quoting Watts v. United States, 394 U.S. 705, 708 (1969)).

[77]395 U.S. 444, 445 (1969).

[78]Id. at 446.

[79]Id. at 444–45 (quoting Ohio Rev. Code Ann. § 2923.13 (1958)).

[80]Id. at 447 (emphasis added).

[81]The exact level of intent required to meet the first prong of the test is not totally clear. See Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1193 (2005) (“The incitement cases, though, have never fully explained why an intent-imminence-likelihood test is the proper approach (as opposed to, say, a knowledge-imminence-likelihood test). Moreover, . . . the main barrier to liability under the Brandenburg test has generally been the imminence prong, not the intent prong; and given the imminence prong, it’s not really clear whether it makes much of a difference whether the incitement test requires intent or mere knowledge.”).

[82]Brandenburg, 395 U.S. at 448 (quoting Noto v. United States, 367 U.S. 290, 297–98 (1961)).

[83]Id. at 448–49.

[84]414 U.S. 105, 106 (1973).

[85]Id. at 106–07.

[86]Id. at 107.

[87]Id. at 108.

[88]458 U.S. 886, 928–29 (1982).

[89]Id. at 902.

[90]Id. at 928–29.

[91]Smolla & Nimmer, supra note 35, § 10:29–30; see also Volokh, supra note 81, at 1190, 1193 (arguing that because of the importance of the imminence prong, the intent prong may not be particularly relevant in incitement cases).

[92]414 U.S. at 107–08.

[93]458 U.S. at 928–29.

[94]Chemerinsky, supra note 26, § 11.3.2.5, at 1050.

[95]See, e.g., Rice v. Paladin Enters., 128 F.3d 233, 243 (4th Cir. 1997) (holding that the publisher of a manual for how to become a contract killer could be liable in tort for aiding and abetting murder where the manual was used to help commit three murders); People v. Sanchez, 888 N.Y.S.2d 352, 358–59 (N.Y. Crim. Ct. 2009) (holding that assembling to prepare for criminal action is not protected under Brandenburg, and noting that “the First Amendment would not have protected a meeting of Al Qaeda to plan the attack on the World Trade Center even if that attack were not to occur until months later”); Smolla & Nimmer, supra note 35, § 10:30 (pointing out that it would not violate Brandenburg for police to intervene where a group of protesters is communicating in preparation to set off a bomb).

[96]See supra note 70.

[97]See supra notes 81, 91 and accompanying text.

[98]The intent requirement to be applied in heckler’s veto cases is complicated. It would of course be troublesome to prove that a given speaker actually intended for a listener to physically attack him. To get around this difficulty, the Court could instead require that the speaker have knowledge that a listener would respond violently. Alternatively, the intent requirement could be dropped altogether, focusing the inquiry on imminence and likelihood only. For present purposes, it is enough to suggest that Brandenburg in practice be followed. As argued above, supra notes 91–94 and accompanying text, the Brandenburg inquiry as applied centers on imminence, so the proposed standard follows suit.

[99]This hypothetical is similar to what might have happened had the plaintiffs in Collin v. Smith actually held their proposed event. 578 F.2d 1197, 1198–99 (7th Cir. 1978); see also Frederick Schauer, The Hostile Audience Revisited, Emerging Threats, Nov. 2017, at 3–4, https://perma.cc/3QJJ-S93E (raising the planned Nazi event in Collin to ask what the police might have done—or been able to do—had the march turned violent).

[100]This prong, as discussed supra note 98, is difficult, but here, given the context and the imminence and likelihood of a violent response, the intent could be inferred.

[101]No. 3:17-CV-00056 (W.D. Va. Aug. 11, 2017).

[102]Id. at 1, 3–4.

[103]Id. at 4.

[104]Id. at 3–4. The First Amendment almost never permits content-based restrictions on speech. See Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 188 (2007) (“It is true enough that content-based regulations of speech are presumptively invalid.”).

[105]Kessler, slip. op. at 4.

[106]Thus, although extreme cases of advocacy of unlawful conduct can still be prosecuted under Brandenburg, see supra note 95, the violence-provoking standard allows for shutting down speech only where truly immediate violence will ensure. Cf. Smolla & Nimmer, supra note 35, § 10:30 & nn.1–2 (noting how the “government may not penalize speech on the grounds that it is about to cause injury unless the speech is on the very verge of causing that injury”).

[107]A variation on a Hitler-era Nazi slogan. See Meg Wagner, ‘Blood and Soil’: Protestors Chant Nazi Slogan in Charlottesville, CNN (Aug. 12 2017, 7:10 PM), https://perma.cc/PUM8-QLXJ.

[108]Heim, supra note 3. Dylann Roof murdered nine African Americans in a church in 2015. Jamiles Lartey, Dylann Roof Found Guilty in Charleston Church Shooting, Guardian (Dec. 15, 2016, 3:33 PM), https://perma.cc/QM8N-ZB44.

[109]Heim, supra note 3.

[110]See Chaplinsky v. New Hampshire, 315 U.S. 568, 569, 574 (1942).

[111]See Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569, 574 (1987) (“Under the First Amendment overbreadth doctrine, an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face ‘because it also threatens others not before the court . . . .’” (quoting Brockett v. Spokane Arcades, 472 U.S. 491, 503 (1985))); supra notes 71–75 and accompanying text.

[112]See supra note 76.

[113]Cf. Smolla & Nimmer, supra note 35, § 10:41 (“If the only feasible alternative is to remove the speaker, then in the case of a peaceful speaker whose only ‘offense’ is that his or her words are causing a violent reaction, the speaker should merely be taken into protective custody from the scene and transported to safety, but not arrested and charged.”).

[114]Leahy, supra note 8.

[115]Va. Code Ann. § 18.2-406 (2014).

[116]See Owens v. Virginia, 179 S.E.2d 477, 479–80 (Va. 1971); see also United Steelworkers of Am. v. Dalton, 544 F. Supp. 282, 288–89 (E.D. Va. 1982) (outlining the differences between the pre-Owens unlawful assembly statute and the amended version).

[117]“Seriously” appears also to add a seriousness element, which is not part of Brandenburg but was part of earlier U.S. Supreme Court–generated tests.

[118]Dalton, 544 F. Supp. at 289.

[119]Va. Code Ann. § 18.2-415.

[120]The violent, threatening conduct of many of the participants at the rally appears to have met the elements of disorderly conduct, apart from the words they used. Indeed, at least one person was arrested for disorderly conduct in connection with the August 12 protests. See Jason Hanna et al., Virginia Governor to White Nationalists: “Go Home . . . Shame on You,” CNN (Aug. 13, 2017, 1:34 AM), https://perma.cc/F57K-T9N7

[121]Va. Code. Ann. § 18.2-415(A) (“A person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . [i]n any street, highway, public building, or while in or on a public conveyance, or public place engages in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed.”).

[122]Id. § 18.2-415(A), (C).

[123]Battle v. Virginia, 647 S.E.2d 499, 501 (Va. Ct. App. 2007); Howard v. City of Roanoke, 654 S.E.2d 322, 325–27 (Va. Ct. App. 2007).

©Virginia Law Review Association. All rights reserved.