Draw the line

Draw the line

Published on September 19, 2017

Isabella Ciambotti, a junior at the University of Virginia, walked up Market Street around noon on Saturday, Aug. 12. She brushed shoulders with wet-eyed protesters retreating from Emancipation Park, where they were attacked by tear gas moments earlier.

In front of the Robert E. Lee statue that stands erect at the heart of Emancipation Park, a cluster of white supremacists — many of them wearing Confederate flag-like capes and holding riot gear plastered with the Othala rune and swastikas — busied themselves with hurling stones and racial slurs across the barricade. The counter-protesters returned by pelting them with water bottles and obscenities. Ciambotti, struck on the head by an airborne coke can, found herself having flashbacks to the schoolyard brawls she saw in her high school.

Amid the chaos, she could only make out a few people chanting “shame” over the uproar of hateful swearing and racial insults. In a vignette that she later published in The New York Times, Ciambotti wrote that a woman from the alt-right marching line stared squarely into her eyes and said, “I hope you get raped by a nigger.”

What the newspaper did not print, Ciambotti chuckled, was that the same woman continued to heckle her and called “pimply.” Why are you alone? Where’s your man? That’s right because you don’t have one! You’ll never get a man.

Peering beyond the frontlines of the alt-right ralliers, Ciambotti could make out the faces of the white supremacists. Some, grandfatherly men. Others, “well-groomed and educated white males in their early 20s” — men who could have passed as college students on her campus.

On Aug. 12, the college town of Charlottesville, Va., transformed into a swirling vortex for neo-Nazi and white supremacy demonstrations. The escalation culminated fatefully in the death of 32-year-old counter-protester Heather Heyer, who was run over by a Dodge Challenger barreling through the crowd. The driver, a 20-year-old from Ohio, had been described in a Reuters article as “a kid at an amusement park” when visiting Dachau in Germany.

Promoted as “Unite the Right,” the white nationalist rally was long anticipated after the Charlottesville City Council passed the motion 3 to 2 on Feb. 6 in favor of removing the Lee statue from downtown Charlottesville. The very same panel ruled unanimously that day to remove Lee as the namesake of the public space and rename it Emancipation Park. While groups like the Virginia Division of the Sons of Confederate Veterans Inc. and The Monument Fund Inc. pushed back on this decision by filing a lawsuit the following day, far-right organizations set their heart on a different form of resistance: a physical one that became mired in blood and hatred.

As the dust settles in this southern college town and the shock of fascism’s public revival wears off, the country finds itself amidst a tide of pro-nationalist rallies and counter-protests, many of which often end in arrests and violence. And Charlottesville is hardly the first. Four months before, an April rally in Berkeley, Calif., deteriorated into fist fights between supporters and opponents of President Donald Trump. The event initially began as a “Patriots Day” organized by pro-Trump groups to support First Amendment rights. But hundreds of Trump opponents, many dressed in black clothing and wearing masks, faced off with the far-right supporters. The two sides threw soda cans, rocks, sticks and other projectiles at each other.

One organization in particular has come under fire for its staunch defense of First Amendment rights to speak and assemble in today’s volatile environment: the American Civil Liberties Union, which has been dedicated to defending civil rights such as freedom of speech since its conception in the early 1920s.

The group’s national legal director David Cole ’80 LAW ’84 represented Unite the Right organizer Jason Kessler when the Charlottesville city manager withheld the rally permit in an attempt to relocate the rally. The city argued that the new venue — McIntire Park, about a mile away from Emancipation Park — would be safer to manage an expected crowd size in thousands, but the ACLU claimed that revoking Kessler’s permit to rally at Emancipation Park was “based on his viewpoint and was not necessary to achieve any compelling governmental interest.”

A federal judge eventually ruled in favor of Kessler, and the rally proceeded to its deadly end.

Two days after the Unite the Right rally, Virginia governor Terry McAuliffe said in a National Public Radio interview that he felt angry that the demonstration was not moved elsewhere, indirectly jabbing at the ACLU’s involvement in Kessler’s legal defense.

The First Amendment rights are enshrined in the U.S. Constitution and have been deemed as a defining feature of American democracy. But as the nation faces polarizing political discourse, is hate speech protected by the First Amendment? And after the bloodshed in Charlottesville and other urban centers, is violence a necessary consequence of upholding free speech?

Protestors gather outside of the College formerly known as Calhoun, advocating that John C. Calhoun's namesake be removed from the building.

Waldo Jaquith, who served on the ACLU of Virginia board for two and a half years, publicly announced his resignation on Twitter in the aftermath of the Unite the Right rally.

“We need the ACLU. We need it so much,” he wrote. “But we also need it to change, just a tiny bit: don’t defend Nazis to allow them to kill people.”

Though Jaquith declined my request to comment further on his resignation, claiming that it would be unfair to the colleagues he had left behind, the backlash on the ACLU’s decision to defend Kessler drew considerable traction on social media and news platforms.

K-Sue Park, who teaches at the University of California, Los Angeles School of Law and who had previously volunteered at the ACLU, left little room for interpretation in her criticism of the organization’s stance. Calling on the civil liberty group to rethink its philosophy, Park argued that defending hate speech merely fuels the radical, spiteful agenda of the far right. “Sometimes standing on the wrong side of history in defense of a cause you think is right is still just standing on the wrong side of history,” she wrote in a New York Times op-ed.

The ACLU has attracted scathing criticism because of its clients before. The last time when the civil liberty group faced staggering reprisal, around 40,000 members handed in their resignations, a number large enough to threaten a budget deficit of the ACLU’s national branch.

That moment of crisis was triggered when the ACLU represented the National Socialist Party of America to fight for the NSPA’s constitutional right to assemble before a predominantly Jewish village hall with Nazi regalia on full display.

In 1977, the NSPA requested to hold a public demonstration — marching through the streets while wearing Nazi uniforms and holding swastikas signs — in Skokie, Ill., where one out of six residents was a Holocaust survivor. The village of Skokie tried to prevent the rally by asking for a $350,000 insurance bond and prohibited any Nazi imagery, citing possible damages to city property and violent confrontations. The local authorities also obtained an injunction against the rally, forcing the NSPA’s plan to a grinding halt.

David Goldberger, the ACLU lawyer who represented the NSPA, said he received party leader Frank Collins’ request for legal counsel the day before the neo-Nazi group was due in court. Still affiliated with the ACLU today, Goldberger told me that Collins’ case struck him as a classic First Amendment rights violation and compared it to Kessler’s case in Charlottesville. At the time, he thought the ramification of losing the case would deal a heavy blow to all the lawsuits that the ACLU was fighting under the First Amendment as well as any future defense for controversial demonstrations.

Hate speech, no matter how unpopular or offensive, is securely shielded under the First Amendment, Goldberger assured me. He added that throughout the years, the Supreme Court has articulated a set of constitutional standards through landmark cases to doggedly guard the extent to which hate speech is protected.

One of the most popular analogies to describe the boundary of free speech is that one cannot falsely shout “fire” in a crowded theater, deriving its origin in Justice Oliver Wendell Holmes Jr.’s widely cited 1919 opinion in Schenck v. United States. Such speech was prohibited because it presented a “clear and present danger” to the public, according to the opinion. Since this case, whether speech violates the “clear and present danger” test has become a key doctrine in determining if it should be protected.

This standard was put to test throughout pages when speech was used to advance racist agendas in cases such as Brandenburg v. Ohio. Clarence Brandenburg, a Ku Klux Klan leader in the 1960s, was convicted under the state’s criminal syndicalism statute when he rallied KKK members for possible “revengeance,” if “our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race.”

The case eventually made its way to the Supreme Court, which overturned Brandenburg’s conviction in 1969 by drawing a firm line between merely advocating for a political cause and inciting “imminent lawless action.” This morphed into the modern constitutional standard, Goldberger said, for the specific purpose that no group’s rights would be stripped simply because there is potential for their provocative speech to instigate violence.

In addition to the articulation of the “clear and present danger” clause in 1919 and the “imminent lawless action” test in 1969, free speech is also conditioned on the time, place and manner of expression. For instance, Goldberger explained, if a demonstration chooses to picket the busiest intersection during rush hour, it is reasonable for law enforcement officials to demand that the demonstration be moved onto the sidewalk.

Still, even with these court standards in mind, what seems to clearly demonstrate the letter of the law does not reflect people’s emotional responses.

“I was a little naive about the pushback that was coming [on the Skokie case]. It seemed to me on the law, the case was very straightforward,” Goldberger said. “[But] the pushback was huge and much bigger than anyone has anticipated.”

Regardless of the resistance and of how ACLU’s defenses are perceived by the public, Goldberger stands firmly by the organization’s dedication to upholding First Amendment rights. In his eyes, the ACLU is a principled institution that does not act out of partisanship, and the bloodshed in Charlottesville should not dissuade the organization from carrying out its mission.

“I am sorry to see people take the position like Jaquith, but that’s clearly a person who doesn’t belong in the ACLU because we are an organization that stands for neutral principles,” Goldberger told me. “I think [Jaquith] prefers clients who you invite home for lunch, and that’s just not the ACLU.”

The organization’s national branch lent strength to Goldberger’s legal analysis. Its statement, in the wake of bloodshed at the Unite the Right rally, affirmed the First Amendment’s protection of “vile, hateful and ignorant speech.” Thus it was the ACLU’s obligation to defend Jason Kessler.

Hate speech may be protected by the First Amendment, but when blood is shed, the clear-cut line between what can and cannot be said — and how various individuals draw the line — begins to blur.

New Haven, a city with a nationwide reputation for its liberal traditions and social activism, is left reeling after its experience this summer with a counter-protest gone awry. The local chapter of a national right-wing fraternal organization, the Proud Boys, had planned a rally to protest against socialism on the New Haven Green this July. Augustus Invictus, an alt-right politician who also headlined the Unite the Right rally, was invited to attend.

The Proud Boys, from founder Gavin McInnes to local members across the country, have a litany of ideological beliefs: pro-Western chauvinism, pro-Trump, anti-feminist, anti-Islam, for example, but also anti-Nazi, pro-gay and anti-willful ignorance. After Charlottesville, the group became defensive about being labeled as alt-right or white nationalistic.

When I contacted John Rutledge, an administrator on the “Proud Boys — Connecticut Chapter Vetting Page” on Facebook, he did not accept my interview request and only sent over an article by McInnes, who argued that the Proud Boys is not a white nationalist group because there are minority members in their ranks.

Tommy Arizona, another administrator on the Proud Boys Facebook page, reiterated to me that his group would never inflict any kind of violence, unless it is used in the name of self-defense. In addition, he offered his own theory as to why political rallies nowaday often deteriorate: “mass mob mentality.”

“You have a bunch of people who hate our president and hate our political system and have no idea why,” Arizona wrote. “So they come to these rallies and cause violence and accuse anyone who isn’t on their side of being a Nazi or being a racist.”

Nevertheless, news that a white supremacy group gathering on the Green made its way to the New Haven activist communities, many of which sprung into action and began to organize a counter-protest. The local chapter of Showing Up for Racial Justice, an organization with the goal of undermining white support for white supremacy, became one of the leading groups against the impending Proud Boys rally. Natalie Alexander, one of the co-organizers of the counter-protest, later recounted a “strong communications failure” and has since left the organization.

Back in July, SURJ conducted a close call, which means contacting counter-protest attendees individually without making public announcements so that the Proud Boys would not mobilize more of its members in response. But the lack of a public, unified front led to internal confusion among the counter-protest organizers, who did not agree on how violence, or even its implication, could play out on the Green.

Alexander later shared with me a document that SURJ had prepared beforehand to instruct the counter-protesters how to proceed without physical confrontation. It included tips like “stay 15 feet back for the fascist rally,” “use noisemakers altogether to INTERRUPT speakers,” and “stay on the Green for the dance party after the rally.”

But the celebratory dance party never happened.

Alexander told me that counter-protest organizers originally planned to stake out the center of the Green and remain stationary, using only noise to drown out the Proud Boys’ event. But to her surprise, there were individuals, their faces masked by bandanas and sunglasses, who came from out of town and had little affiliation with the local activism community. They came, Alexander added, with the intention of risking police arrest and provoking a violent outburst.

Immediately after the Proud Boys stepped foot on the Green, she recalled seeing several mask-bearing counter-protesters leap from the ground and charge toward them. Though only a handful of Proud Boys came, almost all were chased by one or two menacing counter-protesters who did not hold back on their kicks and punches. One paint-filled balloon landed on a Proud Boy’s neck, coloring the back of his head entirely pink.

“As soon as it turned into the clusterfuck that it was, it was very difficult to distinguish between counter-protesters and people who were just really angry that this was happening on their Green,” Alexander said.

Violence, it seems, could come from both sides.

Almost half a century before the Proud Boys descended upon the New Haven Green, this city grabbed national headlines during the height of the Black Panther trials. All eyes were on the city government and Yale administrators when Yippies like Abbie Hoffman announced that thousands would march onto the streets of New Haven on May 1 of 1970, threatening to burn Yale to the ground during what became known as the “May Day” rally.

Alex Rackley, a Black Panther member, was mistakenly suspected of being an informant for the Federal Bureau of Investigation. He was tortured and murdered in 1969 by three fellow Panthers, who were eventually arrested and tried for their criminal actions. But the May Day protest was triggered by the arrest of Bobby Seale, the Black Panther national leader, who the Connecticut state attorney believed to have ordered Rackley’s murder.

Outraged by what they considered to be injustice committed upon the African-American community, people of all persuasion, radical or not, were moved to join the May Day protest, trying to forcibly release Seale from prison.

In the 1960s and early 1970s, Henry “Sam” Chauncey ’57 was special assistant to former University President Kingman Brewster. He told me that the May Day protest took place in an era when massive political gatherings were not only common on college campuses but also highly likely to turn violent. And the default strategy for school administrators was to lock out the demonstrators completely.

Nevertheless, with an estimate of 50,000 people showing up in the Elm City on May Day, Chauncey was convinced that the traditional solution of relying on law enforcement to bar the entry of the protesters would only end in a bloodbath. Instead, he opted to welcome the protesters with open arms and decided to keep police presence strictly controlled.

“The principle behind the plan was that most radicals are people who have a belief which is not consistent with the norms in the current society,” Chauncey said. “[But] they are not harmful or out to cause physical damage.”

Chauncey began to coordinate with the former NHPD Police Chief James Ahern to keep those with the sole purpose of wreaking havoc at bay. Militant left-wing groups like the Weathermen, who Chauncey considered as having no central philosophical standing and only promoted destructive violence, were prohibited from entering the city while all other radical factions were accommodated with three meals a day and a place to sleep.

Yale students — only around 25 of whom decided to leave town before the two-day rally — were recruited to guide or volunteer. Residential colleges were assigned specific roles: for example, Pierson College was the medical infirmary and Davenport College served as a child care center.

Yet, the most daring but clairvoyant plan was asking Ahern to command all law enforcement authorities, Chauncey said, which included the Department of Justice, the Marines, the FBI and 5,000 National Guards. This marked the only time in American history when a local police chief is given command of the federal troop. Unfazed, Ahern ordered that all bullets be removed from firearms and stationed the police far from the boundaries of the Green. Photos from May Day show few uniformed officers — Chauncey told me that only around a dozen or so plainclothes were scattered through a crowd of around 35,000.

“When Ahern took control of all the police forces and the military, he made everyone take out bullets in their guns. It had always been our philosophy that talk is better than guns,” he said.

I asked Chauncey whether Yale exported this model of preparation. But he let out a sigh and explained that after four students were fatally shot by the National Guard during the Kent State University rally in 1970, no peaceful campus demonstration comparable in size to May Day ever occurred in the country. Perhaps this is a history lesson that police departments in the country today have forgotten, or have never learned, he added.

Comparing the level of preparedness between the May Day protest and the Unite the Right rally, Chauncey was cautious to point fingers to the UVA and Charlottesville police force. But Goldberger did not mince his words when I asked what could have been done differently to change the deadly outcome.

“There is no public assembly that can’t be managed if there are sufficient police and law enforcement authorities and they are properly planned,” Goldberger insisted.

As he was watching TV news report on the rally earlier in the day, Goldberger said he was taken back by the lack of police skirmish line between the white supremacists and the counter-protesters. He tried to rationalize this hands-off decision by positing that police officers might have considered their presence to be provocative to civilians. But he quickly discredited this line of reasoning and exclaimed that it is not “rocket science” to implement a neutral area separating confrontational individuals on both sides.

“Frankly, if you really think about what happened, it’s miraculous that the death occurred not by an action of the demonstrators as part of the demonstration,” he said. “It was a one-off by a crazy man.”

Yale, embracing the full force of the May Day rally with detailed preparation, escaped a potentially catastrophic conflict unscathed, while the Charlottesville demonstrations lacked proper law enforcement coordination. But this argument does not answer whether violence is inherent to the nature of heavily partisan, highly emotional ideological conflicts.

The Unite the Right rally upended Heather Heyer’s family, and sent ripples to communities from all sides of the political spectrum. As UVA students begin their new academic year, the rally became the colloquial “elephant” in the room.

Brendan Novak, the opinion editor at UVA’s campus newspaper, The Cavalier Daily, told me that campus conversations around race relations almost always begin with a tribute to Heyer. A second-year student, Novak made national news because of his two opinion columns, which documented his change of heart before and after Aug. 12.

Two weeks before the Charlottesville rally, Novak wrote a column arguing in favor of letting Kessler hold his white nationalist demonstration. He had hoped that these “petulant racists” would openly display “the rotting moral of their ideology,” so that onlookers would come to realize that groups like the KKK are dying organizations.

But what he saw on Aug. 12 completely defied his expectations. Realizing that Kessler and his cohorts had little intention of participating in public discourse, Novak wrote in his second column two days later that violent intimidation and harassment should be grounds to disqualify their alt-right assembly.

I probed him further on his second column, asking if it is possible to have right-wing extremist demonstrations without physical harm. Clearly hard-pressed for an answer, Novak admitted that though these rallies could proceed peacefully in theory, they have shown a record of devolving in reality.

“It’s a blurry line and I can’t pretend to be smart enough to know where to draw the line. But, I know that it takes a nuance,” he said. “It’s not free speech matters so much so that anything goes.”


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