Various defendants have filed motions to dismiss the latest free-speech lawsuit from lead Unite the Right organizer Jason Kessler.
Filed on the two-year anniversary of the deadly Aug. 12, 2017, white supremacist rally, the most recent iteration of the lawsuit adds David Matthew Parrott, former spokesman of the Traditionalist Worker Party, as a plaintiff.
It claims the plaintiffs’ First Amendment rights were violated by the city of Charlottesville, former city Police Chief Al Thomas, then-Virginia State Police Lt. Becky Crannis-Curl, former City Manager Maurice Jones and current City Manager Tarron Richardson.
Kessler voluntarily dismissed an earlier lawsuit that similarly claimed his First and 14th Amendment rights were violated.
All of the defendants — save for Richardson — are alleged to have been directly involved in violating the plaintiffs’ rights, according to the complaint. Richardson is named “in his official capacity due to the misconduct of his predecessor in office.” No further factual allegations are made against Richardson.
Similar to previous iterations of the lawsuit, the most recent complaint claims Charlottesville and state police allowed a “heckler’s veto” by not preventing fights leading up to the declaration of an unlawful assembly.
However, motions recently filed on behalf of the defendants argue that no constitutional rights were violated and that the lawsuit should therefore be dismissed.
A motion on behalf of Crannis-Curl argues that Kessler was aware his “racially and religiously offensive language” would attract violence from groups such as Antifa.
“Despite Kessler’s intentional use of inflammatory and offensive rhetoric at his rallies, even in the face of violence by opposition groups, Kessler planned no private security for his rally,” the motion reads. “Instead, he appears to have relied on the state and local law enforcement officials to protect him — not only from violence, but even from interruption by hecklers.”
The motion goes on to argue that the First Amendment does not guarantee protection from private parties and is not constitutionally obligated to protect speech from interruption.
“The First Amendment right to free speech prevents the government from infringing on Plaintiffs’ freedom to speak, but it does not guarantee them police protection from interruption by private parties,” the motion reads. “There is no supervisory liability for police commanders for unlawful conduct by private citizens, nor is there liability for police commanders when the troopers under their command have not violated any constitutional right.”
A motion to dismiss on behalf of the city makes a similar argument, taking the position that the rally was dispersed due to violence, which is not considered protected speech.
“There was no violation of Plaintiffs’ First Amendment rights to freedom of speech, as they were not entitled unilaterally to a municipal or state security detail to ward off counter-protesters, an unlawful assembly was declared, and the entire crowd — protesters and counter-protesters — dispersed,” the motion reads.
The responses on behalf of Crannis-Curl and the city both cited a similar lawsuit filed by Robert Sanchez Turner as supporting evidence for their dismissal arguments.
In the complaint, Turner claimed that his 14th Amendment rights were violated when law enforcement officials commanded “subordinates to stand down while hundreds of white supremacists and their sympathizers assaulted and seriously injured counter-protesters.”
However, a U.S. District Court judge said he did not find a constitutional duty under the 14th Amendment for police to intervene to protect a citizen from criminal conduct by third parties to be clearly established. The decision was later upheld by the 4th Circuit Court of Appeals.
“Defendants submit that the First Amendment does not impose an affirmative duty for the police to do something that the Fourteenth Amendment does not,” the motion on behalf of the city reads. “The First Amendment does not proscribe inaction when equally applied to all ‘rally’ attendees any more than does the Fourteenth Amendment.”
A motion on behalf of Jones makes similar arguments and claims that he, like Crannis-Curl, should have qualified immunity.
The response on behalf of Richardson is the shortest of the bunch, arguing that he should be dismissed as a defendant because none of the allegations in the complaint are against him in his individual capacity and are redundant to those against the city.
Thomas’ response also hinges on similar arguments, claiming the enforcement of the rally dispersal was “content neutral.” Thomas’ motion additionally cites a third-party report about the rally put together by former U.S. Attorney Tim Heaphy.
“While Plaintiffs’ Complaint attempts to cast the Alt-Right as non-violent victims attacked by Antifa, the Independent Review of the 2017 Protest Events in Charlottesville, Virginia, reveals the true picture — mutual combat and violence by both protesters and counter-protesters,” Thomas’ motion reads.
Kessler and Parrott have not yet responded to the motions to dismiss and no hearing dates have been set.