Lessons from Charlottesville: public protests

Adapted from an article by Elise F. Crosby, president, South Carolina Municipal Attorneys Association, city attorney, City of Georgetown, and Thomas E. Ellenburg, city attorney, City of Myrtle Beach.

If local governments prepare, plan and train, perhaps we can avoid another Charlottesville.

In the wake of the deadly protests in Charlottesville, Virginia — in which a white supremacist allegedly drove his car into the crowd and killed a counter protester— does your town have the tools to manage unrest? Myrtle Beach, Georgetown and Greenville are among cities that have considered or are poised to consider amendments to special events policies and related city ordinances.

Cities have the duty to secure freedom of speech and protect public safety. Neither happened in Charlottesville.

The right to protest: fundamental, not absolute
People have the right peaceably to assemble. But First Amendment rights are not absolute, and government can act when there is a clear and present danger of riot, interference with traffic, or other immediate threat to public peace. State and local criminal codes are not suspended because the crime occurs during a protest. Police are not required to turn a blind eye to crimes committed.

The city's two duties

  • The Duty to Protect Free Speech — Cities should keep the focus on public property. One cannot claim a First Amendment right to protest on private property belonging to someone else, even if generally open to the public, like a shopping center. The traditional public forum includes places historically associated with free expression, such as streets, sidewalks and parks. Protests can be peaceful and popular or hateful and loathsome.
  • The Duty to Protect Public Safety — What might be a reasonable restriction on free speech in the interest of public safety? A restrictive ordinance must be narrowly tailored to time, place and manner. It will be subject to strict judicial scrutiny to ensure it is no broader than necessary to serve the city's compelling interest and does not end up restricting speech based on content.

Collision-avoidance: a permit ordinance that works
All South Carolina towns canvassed by these authors have permit requirements for parades, assemblies or other special events. The state Supreme Court has found parades and pickets may be subject to reasonable nondiscriminatory permit requirements related to traffic control and public convenience. Protected: distributing leaflets on sidewalks. Not protected: blocking pedestrians or harassing people. This may be regulated under the city's duty to protect the public.

Type of event
Cities cannot base ordinances on speech content, but municipal ordinances have historically been reasonably tied to the type of event. Specificity is usually helpful, but cities must be careful not to make decisions based on content.

Crowd size
When one person or a small group protests in a park or on a sidewalk in a way that does not burden anyone else, the First Amendment probably bars enforcement of a permit requirement. On the other hand, cities can require a permit for a preplanned assembly on public property that will have an impact.

Time for application
A due date on an application for a protest or assembly is a governmental time restraint on free speech that must be narrowly tailored to a compelling governmental need, such as lining up police protection.

The cities canvassed all charge application fees for special event permits. There are limits on financial burdens a town can impose on the exercise of First Amendment rights. Charges cannot exceed the actual cost of the public safety needs to accommodate the speech, and the city cannot increase the charge to include services anticipated to control opponents ("heckler's veto").

Counter protests
When one group assembles to protest the message of another, the First Amendment protects both. Police must not silence either but instead function in the dual role of protecting the freedoms and safety of both groups, as well as the public. Police cannot arrest a protester for provoking a hostile audience reaction, without some other crime.

Strategies should include separating opposing groups. But opponents must be allowed to protest in the same general vicinity. Cities can pre-plan for hostile-party separation via ordinance and training. Cities considering amendments to their ordinance will need to consider resource availability and street layout, so the distance is reasonably related to identifiable safety interests.

Traffic flow
The public has a right to freedom of movement that police must protect. This includes pedestrian and vehicle traffic. A city is well within its rights to tailor a special events policy to minimize disruption for a road race or festival. Protesters have the same freedom as anyone else to use a sidewalk, such as pickets at a factory, business or politician's office.

Caution light: illegal speech
The Supreme Court has carved out three classes of speech that may be criminalized. "Hate speech" is not one of those. Unprotected speech falls into three categories: incitement, true threats and fighting words, which are uttered face to face to provoke violence. Cities can — and should — regulate these.

Read the full article by Crosby and Ellenburg.