Weeks after anonymous White supremacists and antisemites Zoomed into a Charlottesville City Council meeting — making racist remarks, spreading conspiracy theories and calling for a race war — council has decided to suspend virtual public comment.
While the public will be able to continue attending meetings virtually, anyone who wishes to speak will have to do so in person.
“We struggled for a while in trying to figure out what we could constitutionally do and concluded there was not really a good answer,” Mayor Lloyd Snook told The Daily Progress on Wednesday. “Do we listen to everybody as they’re ranting, knowing that if they were there in person, they probably wouldn’t do it but feel free to do it anonymously online, while still having a distinct impact on the people listening?”
One day after council voted 4-0 to suspend remote public comment, with councilor Leah Puryear absent, Council Member Brian Pinkston called the decision a “judgement call.”
“On one hand, we obviously value people’s input and desire to participate remotely and we’d love to continue to do that, but at same time, I’ll call it taking care of the community and protecting those from behavior that’s not just offensive but deeply hurtful,” he told The Daily Progress.
The decision is a result of an Oct. 2 council meeting during which White supremacists hijacked public comment, turning their cameras off and using fake names to Zoom in and celebrate Adolf Hitler, use racist slurs and call for outright genocide. The flood of remarks seemed, at least in part, spurred by the city’s decision to lift the curfew at Market Street Park after police were accused of mistreating the homeless population that resides there — a story which had been circulating in national right-wing media ahead of the meeting. Those allegations were later called "unfounded" by Police Chief Michael Kochis and the city plans to reinstate the curfew to coincide with the availability of more beds for the unhoused.
The people in attendance on the evening of Oct. 2 were clearly shocked: Gasps could be heard and several demanded the speakers be cut off.
Council was clearly caught off guard by the remarks, as members questioned whether the virtual public comments were protected by the First Amendment, as the very first racist speaker of the evening claimed.
Councilor Michael Payne later told The Daily Progress he’d “never seen a flood of virtual verbal comments like that.”
Snook eventually looked to city attorney Jacob Stroman for guidance on how to proceed; Stroman gave Council the OK to cut off the speaker.
“The gross insult” to community members was unacceptable, “even under the broadest interpretation of the First Amendment,” Stroman said to Snook.
The incident forced council to wrestle with questions of free speech in real time.
“I think it was practically impossible for the mayor in that very moment to figure out, ‘OK, this piece of speech is protected, this part is not,’” Pinkston said.
A repeat of the incident, he continued, could open the city up to a lawsuit.
Council considered technological alternatives to ending virtual public comment, such as having Zoom speakers relegated to a waiting room before providing comment. But according to Pinkston, they were told the city currently doesn’t have that ability. Even then, the city would not have an adequate vetting process to guarantee no ill-intentioned speakers would slip through the cracks.
“It would prevent Zoom bombing, but it wouldn’t prevent people from lying,” Pinkston said.
If someone said something that is “deeply offensive and violates free speech protections,” he added, council would need to “cut them off before they’ve already created havoc.”
There also did not appear to be a simple legal solution.
“A lot of other suggestions folks had made simply weren’t going to work,” Snook said. “Some people said, ‘Ban all racist speech.’ We can’t do that. A federal district court judge told us that in 2016.”
Snook was referring to Draego v. Charlottesville, a court case that ruled in favor of Joe Draego, who made Islamophobic remarks during public comment at a 2016 City Council meeting.
Draego had told council that Muslim immigrants posed a risk to Charlottesville’s safety and that their holy text instructed them to “kill the sodomites and those who allow themselves to be sodomized.”
He went on to call Muslims “monstrous maniacs” who perpetrate “horrible crimes,” leading then-Mayor Mike Signer to call for a vote to have Draego’s speaking time cut short. Signer cited the council’s “group defamation rule,” which disallowed speech that disparaged an entire group or race.
Draego ultimately had to be removed from the meeting by two police officers.
Months later, he filed a lawsuit against the city, which argued that the “group defamation rule” was unconstitutional.
Judge Norman Moon agreed, ruling it violated the First and 14th amendments.
“The central question in this case is: Can a local government — consistent with the Constitution — open a forum for citizens to address their elected representatives on whatever subject they believe merits attention, yet then ban speech it deems to be a ‘defamatory attack’ on groups?” Moon wrote in his decision. “Here, the answer is ‘no.’”
Snook said that while council can regulate the time, place and manner of speech, it cannot prevent people from disparaging groups of people.
“We could say you cannot use the N-word, but we cannot say you can’t speak poorly of Black people,” he explained. “The fact is disruptive and upsetting speech is still protected speech under the U.S. Constitution.”
By eliminating virtual public comment, the city is also eliminating the need for council to make in-the-moment First Amendment decisions.
“We decided we survived without Zoom calls for more than 100 years and we can survive without them for another 100 years,” Snook said.