Updated at 9:56 p.m.
The city of Charlottesville and City Manager Maurice Jones are now facing a federal civil rights lawsuit that includes an allegation that “political pressure” led city officials earlier this week to waffle on whether they would provide security at a controversial rally in Emancipation Park on Saturday.
According to the lawsuit filed Thursday by the American Civil Liberties Union of Virginia and The Rutherford Institute, Police Chief Al Thomas told Unite the Right rally organizer Jason Kessler on Monday that police would provide protection at the rally.
But at a private meeting Tuesday, after the city held a news conference Monday announcing that it would provide Kessler a permit only if he moved the event about a mile away to McIntire Park, city officials told him that Thomas had “changed his mind,” the lawsuit claims.
At the Tuesday meeting, according to the lawsuit, Kessler asked why changes had been made to security … “and if this was due to political pressure. Capt. [Wendy] Lewis indicated affirmatively with her facial expression and body language.”
The city has cited concerns about security and safety as its reasons for asking the event to be relocated. At a news conference Thursday, Thomas said everyone would be protected whether they are gathered at Emancipation Park or McIntire Park.
The focus of the rally is to protest the City Council’s votes to remove the statue of Confederate Gen. Robert E. Lee and rename its former namesake park as Emancipation Park. While the topic of the statue has generated a great deal of controversy, the inclusion of pro-secessionist and white nationalist organizations at Saturday’s rally is expected to draw a greater number of counter-protests.
Authorities, residents and business owners have said they are concerned that the rally and counter-demonstrations will cause disruptions in the downtown area. In the last year, the emerging populist “alt-right” movement, which is rooted in racism and nationalism, has been met by anarchists, leftists and anti-fascist groups, sometimes violently.
Both the ACLU of Virginia and The Rutherford Institute, an Albemarle County-based civil liberties organization, issued statements about the lawsuit Thursday evening.
“The ACLU of Virginia stands for the right to free expression for all, not just those whose opinions are in the mainstream or with whom the government agrees,” said Claire Guthrie Gastañaga, executive director of the Virginia ACLU. “The city’s action is unconstitutional in that it denies Mr. Kessler and his supporters the ability to fully express their views in the location most closely associated with their message while leaving in place permits granted other organizations with opposing views.”
“Tolerance is a double-edged sword. It has to go both ways. This governmental exercise in intolerance and censorship of speech that may be distasteful to the majority of the populace is exactly what the First Amendment was intended to prevent,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute.
“Ironically, it was these very same tactics that local governments attempted to use to silence First Amendment activists such as Martin Luther King Jr. and his followers and shut down their protest activities. You either believe in free speech for everyone — no matter their viewpoints — or you don’t.”
According to the lawsuit, the decision to revoke the permit for Emancipation Park is a violation of Kessler’s civil liberties because it was based on the content of the speech that will be featured at the rally.
The revocation of the permit “was based on [Kessler’s] viewpoint and was not necessary to achieve any compelling government interest, in violation of the First and Fourteenth Amendments,” the lawsuit says. “To the extent that the revocation of the permit was based on crowd size, the revocation was not narrowly tailored to a substantial government interest, and did not leave open alternative means of communication.”
A police official in charge of security Saturday said Thursday that “open source and intelligence gathering” have led the department to think that 2,000 to 6,000 people could be in attendance at the Unite the Right rally. The original application for the event estimated that 400 people would participate.
“Of course, we have estimates, but it’s really hard to predict those numbers,” said Capt. Victor Mitchell. “We have information from certain groups that are coming, but we don’t have exact numbers.”
The lawsuit alleges that city officials have been unable to provide enough information that shows there might be so many people that it would be impossible for police to handle the situation safely.
According to the Facebook event page for the rally, approximately 700 people have indicated that they will attend the rally. Another 1,300 Facebook users have indicated they are interested in the event.
A multi-faith clergy coalition known as Congregate Charlottesville has requested that 1,000 clergy members come to Charlottesville this weekend. Activist groups associated with the Black Lives Matter movement and political leftists are also rallying their supporters downtown Saturday to confront the right-wing rally in Emancipation Park.
Activist and University of Virginia professor Walt Heinecke has been granted a permit to hold rallies nearby at Justice and McGuffey parks.
The lawsuit says there is no estimate offered for the number of counter-protestors. Regardless, according to the suit, the city should be able to provide protection for the rally, and that Thomas earlier did not say at Monday’s news conference that his department would be “unable” to protect everyone in attendance.
“The city can rely on other local, state and federal forces to adequately manage the rally if necessary,” the lawsuit claims, adding that the city has been able to provide protection at larger demonstrations that have taken place at Emancipation Park and elsewhere in the downtown area, such as the Sprint Pavilion and outside City Hall.
The lawsuit also includes claims that members of the City Council have openly condemned the Unite the Right rally and the viewpoints that will be expressed as evidence that the decision to move the event may have been politically motivated.
Mayor Mike Signer declined to comment Thursday evening, and referred all inquiries to the city’s legal counsel. Shortly before 8 p.m., City Attorney Craig Brown said in an email that he was reviewing the allegations in the complaint.
The lawsuit is requesting the court compel the city to permit the rally that’s been scheduled for Emancipation Park from noon to 5 p.m. Saturday, and requests that Kessler be awarded for his legal fees and legal damages.