How free speech dogma failed us in Charlottesville

I was actually advised to avoid mentioning white nationalism entirely, lest I suggest that the city was concerned about the content of the rally’s speech—another no-no in First Amendment case law. Our lawyers suggested that the most “content-neutral” ground for moving the rally would be crowd size: The white-nationalist gathering would certainly have far more than the 400 on its permit application.

But the ACLU of Virginia sued us anyway, arguing that the city had been motivated by the content of the speech at the rally, not the safety of the public. On the rally’s eve, we lost in federal court. The decision faulted us for not moving two competing far-left rallies as well, concluding that we had focused on the far-right utterances of the “Unite the Right” rally.

This was crushing. The “Unite the Right” gathering would unquestionably be massive and dangerous; the counterprotests would be far smaller and easier to handle. And if we had tried to move them despite their modest size, we would have undermined the very content-neutral rationale enabling us to move the original rally.

The rest is history. We were correct: The militia rally couldn’t be safely held in downtown Charlottesville.

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