united-states freedom-of-speech virginia municipal-bylaws
Can the city of Charlottesville, VA ban a group from assembling in the town because of religious or political views?
<p><a href="https://en.wikipedia.org/wiki/Richard_B._Spencer" rel="nofollow noreferrer">Richard B. Spencer (Wikipedia)</a> organized and led a <a href="https://www.washingtonpost.com/news/grade-point/wp/2017/10/07/richard-spencer-leads-another-torchlight-march-in-charlottesville/" rel="nofollow noreferrer">protest march on Oct. 7th, 2017</a> in Charlottesville, Virginia, drawing this reaction from Charlottesville Mayor Mike Signer on Twitter:</p>

<blockquote>
  <p>“Another despicable visit by neo-Nazi cowards. You’re not welcome
  here! Go home! Meantime we’re looking at all our legal options. Stay
  tuned.” <a href="https://twitter.com/MikeSigner/status/916838439567482881" rel="nofollow noreferrer">MikeSigner/status/916838439567482881</a></p>
</blockquote>

<p>The mayors' reaction was a result of the August 11–12, 2017 <a href="https://en.wikipedia.org/wiki/Unite_the_Right_rally" rel="nofollow noreferrer">Unite the Right rally (Wikipedia)</a> that resulted in a death and injuries.</p>

<p>What are some possible legal options for the city of Charlottesville to attempt to prevent Spencer and followers - in a formal or loosely organized group - from gathering or parading?</p>

<p>Are any of these options possibly successful, considering state and federal laws?</p>

<blockquote>
  <p>1) Can the city - the city council and/or the mayor - ban a group from
  gathering within the city limits because of religious or political
  beliefs or views?</p>
  
  <p>2) Can a group be banned because of limits on crowd sizes? For the
  lack of a permit to gather or parade?</p>
  
  <p>3) Can the city justify the ban of a group because of past violence?</p>
  
  <p>4) Is there a difference of what the city can do between private land (where the protest has been invited to take place) and
  public spaces that are used by the groups?</p>
  
  <p>5) Could the city ban a arbitrary number of named individuals, i.e. if
  Spencer's group gathers for a protest but each person claims to not be in a formal group as a strategy to get around a ban on a named group?</p>
</blockquote>

<p><a href="https://www.aclunc.org/sites/default/files/know_your_rights_free_speech.pdf" rel="nofollow noreferrer">This ACLU article</a> summarizes the law as it pertains to demonstrations. Prohibiting an assembly because of viewpoint is illegal. Banning a group is illegal (regardless of the reason for such a ban). A group cannot be banned because they don't have a permit (this too is a First Amendment issue): however, an <em>assembly</em> can be prohibited if there is no permit. An event can be disbanded if it causes violence or unreasonable disruption, but if others engage in violence in response to a demonstration, that does not invalidate your First Amendment rights ("The police must permit the speech and control the crowd; there is no heckler’s veto", <a href="https://supreme.justia.com/cases/federal/us/379/536/" rel="nofollow noreferrer">Cox v. Louisiana</a> 379 U.S. 536). Even if a past event by the organization has resulted in violence, a subsequent event cannot be prohibited (<a href="https://openjurist.org/187/f3d/1037/united-states-of-america-v-pamela-baugh" rel="nofollow noreferrer">U.S. v. Baugh</a>, 187 F.3d 1037). The constitutional right to assembly is an individual right, not a collective right: an individual cannot lose his First Amendment rights, so a city cannot ban particular individuals.</p>

<p>There is a huge difference between what the city may do with respect to public property and private property. Compelled speech is also unconstitutional. When an individual unlawfully take possession of the property of another in order to express himself, that is trespassing. The government cannot compel an individual to involuntarily support a viewpoint, thus a protester does not have a constitutional right to protest on my private property. They <em>do</em> have that right with respect to public places. (Not absolutely <em>all</em> places, e.g. not on a military base).</p>

<p>Any limits on time and place have to be narrowly constructed and clearly stated in the law, and arbitrarily limiting an assembly to some location miles from the intended audience is illegal (<a href="https://openjurist.org/914/f2d/1224/bay-area-peace-navy-v-united-states" rel="nofollow noreferrer">Bay Area Peace Navy v. U.S</a>, 914 F.2d 1224). Limitations have to be reasonably and narrowly related to safety and disruption concerns, or to regulate competing uses (<a href="https://supreme.justia.com/cases/federal/us/505/123/" rel="nofollow noreferrer">Forsyth County, Ga. v. Nat’list Movement</a>, 505 U.S. 123). Even if all protests are equally subject to unreasonable restrictions, the restrictions would be unconstitutional.</p>

<p>As long as a ban on assembling is related to place and time, it is not a violation of the First Amendment and, thus, is permitted. If such a ban has to do with content of the assembly or the point of view of those gathering for the assembly, then it is a First Amendment violation. </p>

<p>This is why cities can say "You can protest here, but not over there," but cannot say "Group X may not protest, but Group Y may protest." </p>
