Sarah Holder is a staff writer at CityLab covering local policy, affordable housing, labor, and technology.
A lot of change has happened since militia groups terrorized Charlottesville. And yet, another summer brings another rally in a different city.
It’s been almost a year since a horde of white supremacists, neo-Nazis, and Ku Klux Klan members tore through Charlottesville, torches blazing. The “Unite the Right” rally, led by white nationalist Jason Kessler and supported by an army of civilian militia, started at the nearby University of Virginia campus on August 11, 2017, and poured into Charlottesville’s downtown by the next day. Amid racist chants and flying fists, a car accelerated through the crowd, killing counter-protester Heather Heyer and injuring several others.
While the national and local reckoning the rally compelled isn’t yet over, a more straightforward goal has also emerged for Charlottesville and other U.S. cities: shaping local policies and strengthening safety measures to prevent an uprising like this from happening again.
By that measure, a number of things have already changed. Charlottesville won a key legal settlement that gives the city some protection from a similar second rally and is already having an impact on permitting policies elsewhere. Confederate statues were removed in more than 100 cities. And in Charlottesville, the event spurred a major overhaul of local leadership, including ushering in the city’s first black woman mayor.* In June, Heyer’s killer, James Alex Fields, Jr., was charged with 28 federal hate crimes, in addition to his December first-degree murder charge. And a segment of 4th Street has been renamed Heather Heyer Way in her honor.
And yet, another August brings plans for another rally. Even as Kessler just formally withdrew his application for a permit to hold an anniversary rally in Charlottesville, he says he’s now directing full attention to an event in Washington, D.C.’s Lafayette Square, where protections differ.
The latest update on #UTR2 is that we’re going to be focusing exclusively on Washington DC on August 12th.— Jason Kessler (@TheMadDimension) July 24, 2018
Be ready by 2pm that Sunday and check the email list for updates on the meetup location.
Sign up at https://t.co/k1WLn4eVEX
Mixed legal protection
For Charlottesville at least, a court settlement will assure some level of heightened security. But it’s not clear how far that will extend to other cities and states. A lawsuit filed shortly after the Unite the Right rally last year by Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) on behalf of Charlottesville has resulted in an agreement that 25 groups and individuals—including the National Socialist Movement, the League of the South, and militias from Pennsylvania, New York, and Maryland—will not return to the city to incite violence. On July 12, lead organizer Kessler became the last party to sign.
The lawsuit rested partly on Virginia’s “constitutional subordination clause,” and an argument that the organized militias armed with paramilitary weapons who joined in the August protest far exceeded the protections granted by the First Amendment.
“The Constitution does not give private armed groups the right to engage in paramilitary activity or usurp the role of authorized law enforcement,” Mary McCord, senior litigator at ICAP, said in a February statement. While the groups aren’t outright banned from Charlottesville, the consent decree they signed ensures that they won’t gather in groups of two or more “while armed with a firearm, weapon, shield, or any item whose purpose is to inflict bodily harm, at any demonstration, rally, protest, or march.”
All 50 states have similar language in their constitutions that could be used to block violence from armed white supremacists, according to research out of ICAP. “Part of the reason for bringing the case in Charlottesville was to establish some precedent for the use of these statutes and legal authorities,” McCord told CityLab. “Not so much so lawsuits could be brought—but so they could be used proactively.” Already, city managers from the small Tennessee cities of Shelbyville and Murfreesboro have consulted the institute to add clear permitting restrictions before White Lives Matter rallies in their jurisdictions.
After Shelbyville’s protest unfolded with little violence and zero militias on an October morning, the neo-Confederate group League of the South abandoned their plans to head to Murfreesboro later that day. “They knew they wouldn’t be able to have the shields and other props and weapons that they used in Charlottesville so they abandoned that effort,” said McCord. “They called it a lawsuit waiting to happen.”
But D.C., which is not a state, doesn’t have the same options. And Lafayette Square, the proposed site of Kessler’s action, rests on federal land, which makes protecting and permitting it the responsibility of the National Parks Service, not only local leadership.
Kessler submitted a permit application to the Parks Department on May 8, outlining his intent to hold a 400-person rally in the square from 8 a.m. on August 11 to 8 p.m. on August 12. He cites the purpose of the event as “protesting civil rights abuse in Charlottesville VA/white civil rights rally,” and warns that “members of antifa affiliated groups will try to disrupt.”
While the application has been approved, no permit has yet been issued. “We are gathering information from the organizers on the details of the event that will be used to create the permit,” said Mike Litterst, a representative for the Parks Department, in an email. “The issued permit will provide details and spell out the specific conditions under which the event will take place to ensure public safety and the protection of park resources.”
The mood of any anniversary rally, especially one with the foresight of history and the oversight of the D.C. police, will likely unfold with less of the unregulated fervor that built last year. Unlike Virginia, D.C. doesn’t allow open carry, and even concealed carry permits are very infrequently granted. The National Park Service and their force of U.S. Park Police have some of the most extensive experience with, and resources for, keeping marches and rallies under control.
“Our role is to make sure we have a First Amendment event that goes on without any types of violence or destruction of property,” D.C. Police Chief Peter Newsham said at a news conference on Monday. “We’ve had those types of high-tension assemblies in the District before. We 100 percent are going to make sure that groups remain separate.”
Not everyone agrees on how best to drive that separation. The Metro board chairman briefly said he would consider allocating separate subway cars for Kessler’s crowd, along with a police escort. But after backlash from D.C.’s largest metro union and local advocates, Evans walked back the comments. “Metro will not be providing a special train or special car for anyone next Sunday,” Evans told the Washington Post Saturday.
But D.C. is far from the only city hosting rallies with violent potential. At other recent far-right rallies, provisions haven’t stopped protesters from carrying weapons or shields. A June 30 rally in Portland, Oregon, thrust the far-right group Patriot Prayer into conflict with antifa and police, landing four people in ambulances, and many others in jail. Its organizer, Joey Gibson, held a follow-up rally Saturday that the Southern Poverty Law Center warned could be “the next Charlottesville” and Infowars’ Alex Jones played up on his show. “Everyone should be carrying around guns at all times, especially in our situation,” Gibson said in a Facebook Live video. Portland prohibits guns in parks, but Oregon is an open-carry state.
On Saturday, guns weren’t visible, but projectiles, sprays, and bats were. ”Officers have seized multiple items that can be used as weapons and are observing people in helmets and protective padding,” the Portland Police department tweeted. Stones and bottles flew through the air; police in riot gear flung stun grenades and showered crowds with rubber bullets. Some chanted “Trump!” and “Build the wall!” Others, “Nazis, go home.” People bled. Four were arrested. No one was killed.
D.C.’s march may end up mirroring Portland’s: terrible, but controlled.
Unlikely allies shifted
The story of how last year’s rally in Charlottesville was approved involves a broad range of players. Initially, the city denied white supremacists’ permit to protest Charlottesville’s plans to remove a Confederate statue, fearing the violence that would eventually come to pass. But the American Civil Liberties Union chose to sue on Kessler’s behalf for his right to hold it anyway, citing free speech. It was this lawsuit, in part, that had caused other cities to question whether they could block similar protestors from entering their borders. After the fall-out from the rally, resignations and a period of “agonizing” for the organization followed. In June, the organization released a memo titled “Conflicts Between Competing Values or Priorities,” which they say was prompted by the reckoning over their involvement in Charlottesville.
“We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy,” it reads. Still, it continues, “We also recognize that not defending fundamental liberties can come at considerable cost.”
To reconcile these “competing priorities,” the ACLU will now follow new guidelines—armed with the ability to deny free-speech cases depending on whether the speaker seeks to engage in or promote violence, or carry weapons; and “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”
A former ACLU board member wrote a Wall Street Journal op-ed condemning the decision: “The speech-case guidelines reflect a demotion of free speech in the ACLU’s hierarchy of values.” But they also mean it’s unlikely Kessler will find an ally in the ACLU again. The national chapter of the ACLU did not respond to a request for comment.
After Portland’s rally, David Rogers, the executive director of the Oregon ACLU, released a short statement condemning the police for biased enforcement. “The Portland Police Bureau’s response to protest is completely unacceptable in a free society,” he said. “The repeated use of excessive force, and the targeting of demonstrators based on political beliefs are a danger to the First Amendment rights of all people.”
Mat dos Santos, the legal director of Oregon’s ACLU, told CityLab that the Portland police have consistently used undue and uneven force to tame protests, which he fears could have a chilling effect on free speech in the city. “They were policing the counter-protesters who were affiliated with various left-leaning groups and essentially ignoring and standing calmly around the protesters with Patriot Prayer,” he said, based on accounts from the scene. “How would someone who was there as an observer feel safe coming back to another protest?”
An unresolved reckoning in Charlottesville
Though it was the streets of Charlottesville that marchers chose to flood last year, their hate wasn’t endemic to the city. The collection of angry young men, mostly, were sourced from the corners of the internet and dozens of states, and their violence revealed an anger simmering nationwide. But it was Charlottesville that bore most of the damage, and the small southern city is still in the process of healing. Leaders and citizens can’t all agree on the right way to do it, caught between the urge to go back to a calmer, pre-August 2017 status quo and mayor Nikuyah Walker’s push for frank dialogue (and action) around the racial and class injustice that existed long before any rally.
The changes started with a broad overhaul of city leadership. Walker, the city’s first black female mayor, ran in the wake of the attack on a platform of “Unmasking Charlottesville”—the Charlottesville that has failed to build enough affordable housing for black and brown residents, and built divisions along racial and classed lines. “Why did you think that you could walk in here and do business as usual after what happened on the 12th?” she asked then-Mayor Mark Signer last August. She’s proceeded to shake up business, first as an independent in city council, and now as the city’s new leader.
Her colleagues in city hall have rearranged, too, after an independent review conducted by a Virginia law firm implicated the Charlottesville Police Department for a lack of preparation, as well as the city manager and council. “Almost everything that could have been mishandled was,” noted a Washington Post analysis.
The police chief stepped down weeks after its publication. Gone, too, is the city attorney. And the search to replace the city manager went on until the end of July, amid controversy. After the council chose an interim candidate and offered him a contract, Walker expressed distrust with the hiring process, and said she didn’t want to “participate in his hiring or welcome him to the city.” Days later, he declined the role. Finally, on July 31, Assistant City Manager Mike Murphy was promoted as an interim fit. The tension surrounding the pick says as much about the divisions within the city council as the stakes of the job.
And as the anniversary date approaches, despite Charlottesville’s legal win, the city hasn’t stopped holding its breath.
Officials are proceeding as if Kessler’s permit had not been rescinded, says Charlottesville’s director of public works, Paul Oberdofer. They’ll follow the heightened security plans the city has had in place since December. Without a permit, Kessler cannot legally gather in a group of over 50 people in Market Square, but “that doesn’t mean that he will or will not show up,” said Oberdofer. He could easily come with a smaller group.
If he does, the consent decree will hopefully add a layer of safety to the event: “These court orders ensure that he and other participants will not repeat the organized and intimidating displays of paramilitary power that led to chaos, fear, and violent confrontations in the city streets last year,” said McCord in a July statement. And if he doesn’t, Oberdofer expects some sort of crowd—local or otherwise—will gather without him.
Statues toppled; laws changed
“Preventing the next Charlottesville” isn’t as easy as resetting a city government, banning bad actors, and investing in infrastructure. City leaders have said that part of shifting the culture might start with removing symbols of the Confederacy—like the statue of Robert E. Lee that Unite the Right participants rallied around last August.
In the immediate wake of the march, Charlottesville chose to wrap its Confederate monuments in black tarps, weighing whether to remove them completely. But other statues fell in more than 100 cities across the country—with fanfare, in some places; elsewhere, quietly. In Annapolis, Maryland, a statue of Supreme Court Justice Roger Taney, who wrote the infamous Dred Scott decision, was spirited away in the middle of an August night; in Baltimore, Mayor Catherine Pugh also ordered the removal a Taney memorial, plus three statues of Confederate figures. Protesters toppled a Confederate soldier in Durham, North Carolina. In Austin, Texas, four Civil War generals were removed from the University of Texas’ campus, and in Dallas, the statue of Robert E. Lee that presided over Lee Park is gone, though the name remains.
State laws prevent other cities from tampering with war memorials, even those that honor the Confederacy. Though Georgia is bound by one of them, former Atlanta mayor Kasim Reed requested a report last August on how the city could legally address Confederate landmarks and street names anyway. That report is ready, but no action has yet been taken. In Virginia, too, a law prevents “authorities of the locality, or any other person or persons, to disturb or interfere with any monuments or memorials” erected as memorials to war.
“There are a lot of cities like Atlanta where you can’t move the monuments even if you wanted to,” said Sheffield Hale, President and CEO of the Atlanta History Center and co-chair of the team that wrote Atlanta’s report. “But what you can do, you can contextualize them—it should be so easy to do, and it turns them from an object of veneration into an artifact.”
In Charlottesville, context is now inextricable. Just blocks from Heather Heyer Way is Emancipation Park, where Robert E. Lee, unsheathed from the black tarp that hid its contours for a few tense months, still stands.
*CORRECTION: An earlier version of this story stated on first reference that Charlottesville got its first black mayor in June. It is its first black woman mayor.