Michael Signer, the Mayor of Charlottesville, is upset about a federal judge’s decision to allow white supremacists to move forward with their rally at a tiny town park. Sadly, the protests spilled over into despicable violence, and resulted in the death of three people. Signer has a right to be upset. U.S District Judge Glen Conrad‘s decision to allow the rally to go forward is deeply troubling, and not supported by the evidence.

In the week leading up to the violent protests in Virginia, the ACLU teamed up with the white nationalist leader Jason Kessler to fight the city’s decision to modify the group’s permit. The City of Charlottesville determined that because of the large number of people expected, they needed to move the rally from Emancipation Park (formerly “Lee Park”) to a park about a mile away which could more safely accommodate the large crowds. To be clear, city leaders were not trying to deprive these Nazis of their First Amendment right to protest, but rather, they were trying to ensure that the rally went on safely and without incident.



But Kessler and the ACLU’s attorneys didn’t believe that was a good enough reason. The civil rights organization teamed up Kessler and filed a lawsuit against the City of Charlottesville.

“The revocation of Plaintiff’s permit was based on his viewpoint and was not necessary to achieve any compelling government interest,” the lawsuit claimed.

Except this time the ACLU (and the judge who sided with them) were on the wrong side of the facts. Some critics will say hindsight is 20/20, and you can’t blame the judge and the ACLU because they couldn’t have predicted what happened. However, even prior to the event, there was plenty of evidence to support the City’s decision to modify the permit, and instead allow the group to protest not even a mile away at a much larger park that was away from the highly populated area.

What’s the evidence? Prior to the violent rally, the City of Charlottesville supplied three signed affidavits filed by the City Manager, the Chief of Police, and the Fire Chief. Most convincing was a report from Police Chief Al S. Thomas documenting the investigation his officers had undertook ahead of the rally.

When Kessler first applied for the permit to rally in May, the white nationalist leader said that only 400 people would show. In the affidavit, Chief Thomas said that his Criminal Investigations Division had gathered a substantial amount of information to indicate that the estimate was very, very low. For example, a detective spoke with Michael Peinovich, one of the speakers at the rally, who himself admitted that the event may draw as many as 1,000 people. The police chief also documented conversations his detectives had with KKK leaders who confirmed that the estimated crowd size would easily exceed 400 people.

Not only that, police believed that those in attendance at the rally could be armed.

“Intelligence reports gathered by the CPD Criminal Investigations Division further indicate that some rally participants intend to carry firearms,” the police chief wrote in an affidavit submitted to the judge.

The chief further stated that the park was only 1.04 acres, and was situated in a busy urban area where the police did not have room to safely stage in case of an emergency. A crowd of that size would also require the closure of several public roads which could potentially cause severe delays for both event and non-event related emergencies.

McIntire Park, where the city wanted to move the rally, was significantly larger, and had adequate staging area for police. A map of the two parks easily shows how much larger and better situated McIntire Park is compared to Emancipation Park.

Yet somehow this wasn’t enough to convince U.S. District Judge Glen Conrad. What’s more, Judge Conrad’s opinion supporting his decision to grant a preliminary injunction to allow the rally at the smaller park seems to completely ignore the facts. He wrote:

Although the defendants maintain that the decision to revoke Kessler’s permit was motivated by the number of people likely to attend the demonstration, the record indicates that their concerns in this regard are purely speculative. Simply stated, there is no evidence to support the notion that many thousands of individuals are likely to attend the demonstration.

Wait, what? Did he not read Chief Thomas’ affidavit?

The judge concluded the city’s decision was content driven, and was not narrowly tailored to achieve the government’s interest. How in the world did he not at the very least acknowledge that there was a safety concern with thousands (or even hundreds) of Nazis with guns, and anti-racist protesters planning to gather in a tiny park in the middle of an urban area?

Again, the blame for what happened lies squarely with the disgusting hatred displayed by the white nationalists. And sure, the city might have partly based their decision on content, but no one can argue that safety was not also a major factor. The fact that the judge did not even acknowledge that in his opinion is very troubling.

When asked about their decision to defend Kessler, a spokesperson for the ACLU sent a statement condemning the violence.

“Since its inception, and even as we have and will continue to fight for free speech for everyone, the ACLU of Virginia has stood up for respect, decency, equality and humanity for all. What happened today had nothing to do with free speech. It devolved into conduct against individuals motivated by hate that was initially thuggish, and ultimately, deliberately murderous,” the statement read.

This is an opinion piece. The views expressed in this article are those of just the author.