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Kessler federal appeal inches forward

As Unite the Right organizer Jason Kessler attempts to appeal his federal free speech lawsuit, the city of Charlottesville and other defendants again are arguing that his rights were not violated.

Kessler has filed several lawsuits since the deadly Aug. 12, 2017, rally, all of which have resulted in dismissal in some form or another. The latest federal lawsuit, which was dismissed in February 2020 by the U.S. District Court for the Western District of Virginia, claimed that the defendants violated Kessler’s First Amendment rights as the rally turned violent.

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

Matthew Parrott, who joined Kessler’s notice of appeal and is named as a party, has not made an appearance in court and did not file a brief or join in Kessler’s brief of appellant. Because of this, the defendants argue the appeal should be considered abandoned.

A large portion of Kessler’s lawsuit 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.

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.”

Following the dismissal, Kessler appealed the lawsuit to the U.S. Court of Appeals for the 4th Circuit, expanding his argument that his rights were violated by a “heckler’s veto,” allegedly used to allow violence so that an unlawful assembly could be declared.

“Mr. Kessler, who was at the designated speaker’s location and had identified himself to police as both the event permit holder and a scheduled speaker, was ejected, pursuant to the a priori plan of the Appellees, from the rally location together with everyone else,” Kessler’s appeal brief reads. “No effort whatsoever was made to find a less restrictive means of restoring the public order than the complete suppression of Mr. Kessler’s First Amendment protected speech.”

One of the cases central to Kessler’s lawsuit and subsequent appeal is 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 group members from the Arab International Festival in Dearborn to protect them from a hostile audience.

This argument failed to sway Moon, who wrote that it was an entirely different situation because the violence at Unite the Right was “leagues beyond” what occurred in the Bible Believers case. Nonetheless, counsel for Kessler revived this argument in the appeal, citing various appeals court cases that could be interpreted as supporting Kessler’s heckler’s veto stance.

The March opening brief was quickly followed by replies from the defendants on April 1.

Counsel for Crannis-Curl argue in her brief that Kessler “effectively abandoned his claims against Lieutenant Crannis-Curl by mentioning her name only in the certificate of service of his opening brief.” The brief additionally claims that the court did not err in dismissing the lawsuit and, regardless, Crannis-Curl is entitled to qualified immunity.

The brief also referenced a 2020 appeal that upheld the convictions of two white supremacists who participated in violence during the Unite the Right rally.

“Despite a long line of cases — including a recent decision from this Court arising from the very same rally — rejecting similar claims, Kessler insists that the First Amendment required government officials to intervene to protect his speech,” Crannis-Curl’s brief reads. “It does no such thing.”

Counsel for the city of Charlottesville, Thomas, Richardson and Jones echoed similar arguments and urged the appeals court to uphold the earlier dismissal. The brief also references 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. The report has been a major source of information for both Kessler’s complaints.

“While Kessler’s complaint attempts to downplay the violence perpetrated by members of the Alt-Right (Kessler’s group) engaged, the Independent Review of the 2017 Protest Events in Charlottesville, Virginia (hereinafter “Heaphy Report”), reveals the true picture — mutual combat and “premeditated” violence by both protesters and counter-protestors,” the city’s brief reads.

On April 26, counsel for Kessler filed a response brief to the defendants, ceding that the “no duty rule” used to dismiss the federal lawsuit holds that police do not owe Kessler “any free-floating right to police assistance anytime or anywhere he wishes to express an unpopular opinion.”

However, the response again doubles down on the heckler’s veto argument.

“Neither the District Court nor the Appellees have cited to any case that holds the police may, due to official hostility to the content of speech, allow public hostility to degenerate into public disorder and then shut down protected speech,” the response reads. “Nor is a case presented holding police may stand there and do nothing while unlawful acts that they could stop if they tried were occurring in front of their faces. Instead, Appellees retreat to the concept that police are not required to endanger themselves in a mob or riot type environment to enforce First Amendment rights.”

The response does walk back arguments that a limited number of supporters and opponents should have been left to continue the speech event after the defendants had “dispersed the great bulk of the crowd.”

“Mr. Kessler, in other words, admits that in the midst of the Unite the Right melee the law does not oblige the police to pick and choose which members of the public are disorderly and which are not,” the response reads. “Mr. Kessler does maintain that it was not unreasonable, and was therefore legally required, for the defendants to not order him to leave as he was standing at the designated speakers location and speaking to police officers right when the unlawful assembly was declared.”

Counsel for Kessler has requested oral argument, citing the “high-octane nature of the case and its underlying facts and the complexity of the interplay of the no duty doctrines with heckler’s veto law.” However, the court has yet to grant this request and no hearings are currently set.


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