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Judge dismisses Kessler lawsuit over Unite the Right dispute

A federal judge agreed to dismiss Unite the Right organizer Jason Kessler’s lawsuit against the city of Charlottesville and various officials on Friday.

Kessler has filed several lawsuits since the deadly Aug. 12, 2017, rally. The lawsuit dismissed Friday was filed on the two-year anniversary of the rally and claimed that the defendants violated Kessler’s First Amendment rights as the rally turned violent.

Judge Norman K. Moon ruled that law enforcement has no obligation to protect people when other parties attempt to suppress their speech.

“[T]he First Amendment merely guarantees that the state will not suppress one’s speech,” he wrote. “It does not guarantee that the state will protect individuals when private parties seek to suppress it.”

In addition to the city, Kessler’s suit named then-Charlottesville Police Department Chief Al Thomas, then-Virginia State Police Lt. Becky Crannis-Curl, former City Manager Maurice Jones and current City Manager Tarron Richardson.

A large portion of Kessler’s suit hinged on the argument that city and state officials allowed a “heckler’s veto” by not preventing fights leading up to the declaration of an unlawful assembly on the day of the rally.

Moon argued that because individuals aren’t protected from the response to their speech, they also are not protected from law enforcement’s actions to that response.

“[T]here was no constitutional right to state protection from a private party’s heckler’s veto, nor the consequences that flowed from the unprevented violence between the protesters and the counterprotesters — that is, the declaration of an unlawful assembly,” he wrote.

Kessler’s suit heavily cited a report prepared by Tim Heaphy — a former U.S. attorney for the Western District of Virginia whose law firm, Hunton & Williams, was hired by the city to review its preparations for and response to the rally.

While the entire 207-page report wasn’t included in the suit, Moon wrote that it was integral to the complaint and referenced it in his ruling.

The report alleged that Thomas intentionally allowed fighting between Unite the Right ralliers and counter-protesters in and around Market Street Park on the morning of the rally so that an unlawful assembly could be declared.

Moon wrote that officers were told not to go into the melee and get injured to ensure “officer and public safety in a context where the violence between the two factions had escalated to such a degree.”

One of the cases central to Kessler’s claim was Bible Believers v. Wayne County. In that case, the 6th Circuit Court of Appeals ruled that officials in Wayne County, Michigan, violated the First Amendment rights of a Christian evangelical group when they removed them from the Arab International Festival in Dearborn to protect them from a hostile audience.

Moon wrote that attorneys actually referenced a citation within that case that referred to an entirely different case. He further argues that the case is an entirely different situation because the violence at Unite the Right was “leagues beyond” what occurred in the Bible Believers case.

City officials declined to comment on the case’s dismissal.


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