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On Friday, August 11, I traveled to Charlottesville, Virginia to attend my co-clerks wedding. I was generally familiar with the controversy over the removal of the Robert E. Lee statue, but was not aware that white supremacist demonstrations were scheduled for the weekend. After the rehearsal dinner wrapped, I drove back to the hotel along Main Street. As we approached the Rotundathe center of the campus designed by Thomas Jefferson himselfthe traffic ahead suddenly slowed to a crawl. In the distance, we saw some lights. At first glance, it appeared to be a candlelight vigil, but we quickly realized what was going on. Hundreds of white nationalists with torches were walking down the steps of the Rotunda, chanting something incoherent, though the word Jews was distinctly pronounced. The sight was surreal; I was more stunned than afraid.

Our hotel was a few blocks away. We drove back to the room, and checked #Charlottesville on Twitter to see what was going on. Moments earlier, the police had declared the gathering an unlawful assembly, and broke it up. (Some reports suggest pepper spray was fired).

This scene, however, was but a mere prelude. Saturday at noon, the Nazis planned to assemble at Emancipation Park, formerly known as Lee Park, to protest the removal of the Lee statue. Unsure of what would happen, we decided to spend the day out of town at Montpelier, the estate of James Madison. There was a strange aspect of visiting the home of the primary author of the First Amendment, while miles away, that same First Amendment was enabling contemptible bigots to inflict violence and, tragically, the loss of life.

The Battle of Charlottesville will be studied in many quarters for many years, but this early entry will focus on the role played by the First Amendment.

Kessler v. City of Charlottesville

On May 30, Jason Kessler applied for a permit to hold a rally on August 12 in Emancipation Park. According to his attorneys at the ACLU and the Rutherford Institute, he chose that location because the Plaintiff wishes to communicate a message that relates directly to the Parkspecifically, his opposition to the Citys decisions to rename the Park, which was previously known as Lee Park, and its plans to remove a statue of Robert E. Lee from the Park. (I have been quite critical of the ACLU for its caving on certain free speech issues, but here, and with its defense of Milo Yiannopoulos, the organization is staying true to its historic mission). Kessler estimated that 400 people would attend, and stated that he absolutely intends to have a peaceful rally and his group would avoid violence. Initially, the City of Charlottesville granted Kesslers application, and also those of other counter-protestors. After the application was granted, however, business leaders in Charlottesville urged that the rally be moved to McIntire Park, which was a mile away. McIntire Park is much larger and has far fewer entrances. Thetopic was also discussed at City Council meetings. Members of the Council spoke out against the white supremacists on social media.

On August 7, the City revoked Kesslers permit, modif[ying] the application to allow a rally in the larger McIntire Park. The city cited safety concerns based on the number of people who were expected to attend Kesslers rally. Specifically, the government explained that holding a large rally at Emancipation Park poses an unacceptable danger to public order and safety. No sources were provided to justify those concerns that had come to the Citys attention. The government cited conservative estimates of no less than 1,000, with as many as 2,000 or more counter-demonstrators in attendance based on internet-based marketing efforts by the Plaintiffs. While Kesslers permit was revoked, the city did not revoke the permits of the counter-protestors, who were still approved to rally within blocks of Emancipation Park.

On August 10, Kessler sought a preliminary injunction in the U.S. District Court for the Western District of Virginia, barring the City from revoking the permit to protest in Lee Park. The motion stated that the City will suffer no harm to its legitimate interests if preliminary relief is granted. Regardless of where the demonstration takes place, the City has an obligation to secure and protect the safety of the demonstrators and the public. The lawyers added that [t]he City's expressed desire to provide security and protection at an alternative site because it would be easier to do so . . . is not a sufficiently substantial governmental interest to override Plaintiff's First Amendment right.

The following day, the City of Charlottesville filed a brief in opposition to Kesslers motion for a preliminary injunction. The government argued that the decision to move the plaintiffs protest from Emancipation Park to McIntire Park was justified without reference to speech content or the Plaintiffs viewpoint, [] was narrowly tailored to serve a significant governmental interest, and [] left open ample alternative channels for communication. The government added that Kesslers complaint does not contain sufficient allegations to support a claim that the City and Mr. Jones were motivated by fears about how counter-protesters will respond to the Plaintiffs rally.

The judiciary would disagree. After a hearing, on the evening of Friday August 11, Judge Glen E. Conrad issued a preliminary injunction, requiring the City of Charlottesville to allow the white supremacists to assemble in Emancipation Park. (The federal courthouse is about three blocks from that park). The court dismissed the governments speculation about the crowd size, concluding that there is no evidence to support the notion that many thousands of individuals are likely to attend the demonstration. Crucial to Judge Conrads analysis was the fact that Kesslers permit was revoked, but the permits of the counter-protestors were not:

The disparity in treatment between the two groups with opposing views suggests that the defendants' decision to revoke Kessler's permit was based on the content of his speech rather than other neutral factors that would be equally applicable to Kessler and those protesting against him. This conclusion is bolstered by other evidence, including communications on social media indicating that members of City Council oppose Kessler's political viewpoint.

Leave aside for now the significance of the court looking to statements on social media by members of government that conflict with the Citys official position to find animus. The courts analysis focused exclusively on the irreparable harm that would be faced by Kessler. There was scant mention of the possible harms to public safety. The closest the court came to addressing this point was noting that a change in the location of the demonstration would not eliminate the need for members of the City's law enforcement, fire, and emergency medical services personnel to appear at Emancipation Park. Instead, it would necessitate having personnel present at two locations in the City. But beyond these sentiments, the opinion hinged almost entirely on the fact that the plaintiffs were likely to succeed on the merits.

Free Speech on the Grounds

In hindsight, the value of the protestors speech was minimal; the cost to public safety was tragic. Shortly after Judge Conrads ruling was issued, the torch-lit demonstration began at the Rotunda. Many were injured as torches and other projectiles were thrown. Roughly twelve hours later, the riots would commence at Emancipation Park. It is rare that a judicial decision can have such an immediate and palpable effect on both public safety and individual liberty.

By the end of the horrific day, there were more than three-dozen injuries. Heather D. Heyer was murdered. Two Virginia State troopers died when their helicopter crashed outside of Charlottesville. (I observed the helicopter hovering over Emancipation park throughout the day). Shortly after the violence began, the Mayor of Charlottesville tweeted, For all watching events in crowded, downtown Cville: this is EXACTLY why City tried to change venue to McIntire-but court wouldnt allow. Had the protest been held at the larger McIntire park, perhaps the police could have kept a stronger control on crowd size, and automobile traffic. Perhaps not.

As a matter of First Amendment law, Judge Conrads opinion is correct. The Citys decision to revoke the plaintiffs permit, but not those of the counter-protestors, gave rise to a very strong presumption that the decision was made based on the content of the nationalists speech. My understanding is that the City merely overlooked revoking the other permits. This blunder, however, provided the basis of the courts decision.

Moreover, there was no concrete evidence that the crowd size would increase, beyond the speculation based on social media traffic. Merely asserting a generalized interest in safety, without more, cannot justify the revocation of the permit in this manner. Indeed, had the permit never been granted in the first place, the City could have avoided the presumption of animus against the plaintiffs bigoted speech. Much attention will be paid to how the Charlottesville Police Department managed the affair. The Citys attorneys also deserve some scrutiny. Had the case been lawyered better from the outset, the analysis would be much closer. If the government could have shown that in the larger park, traffic could have been better cordoned off, the requisite scrutiny may have been met. But here we are.

The Social Costs of the Bill of Rights

The constitutional questions here are difficult and complex. As usual, Justice Robert H. Jackson stated the issue far better than I possibly could. Here is an excerpt from his iconic dissent in very apt case of Terminello v. Chicago:

[U]nderneath a little issue of Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society's need for public order. . . .

But if we maintain a general policy of free speaking, we must recognize that its inevitable consequence will be sporadic local outbreaks of violence, for it is the nature of men to be intolerant of attacks upon institutions, personalities and ideas for which they really care. In the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty is made more secure by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty and that the factions engaged in this battle are not interested permanently in either. . . .

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

The Battle of Charlottesville illustrates, once again, the social costs imposed by the Bill of Rights.

See the rest here:
The First Amendment on the Grounds in Charlottesville - Lawfare (blog)

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John V. Berry

In the wake of the tragic events this past weekend in Charlottesville, a number of the white supremacists protesting have been identified and outed by social media and then subsequently fired from their employment.

One issue that has arisen is the argument that these individuals have a First Amendment right to speak their minds, however wrong they may be, and to not suffer negative consequences. That is not true. The First Amendment offers almost zero protection for individuals who engage in hate or other inappropriate speech who are then fired from private sector employment.

There are very limited forms of protection for federal and public sector employees under the First Amendment only because the government implements employment actions. Generally, a government employee must be engaging in speech that is considered a matter of public concern to receive some protection.

That protection can be taken away if it interferes with the function of a government agency. In our experience, a public sector employer might need to take additional steps but can usually find ways to fire a public employee for engaging in hate speech.

In sum, not much has changed since the 1892 case McAuliffe v. Mayor of New Bedford in the Supreme Court of Massachusetts when Justice Holmes, in a famous quote involving the termination of a police officer for engaging in politics, stated: The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.

First Amendment

The First Amendment provides the following rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The First Amendment protects private individuals from government suppression of free speech, but not from other private individuals and/or companies who take action as a result of speech. For instance, there is no First Amendment issue with social media companies selectively banning users from their platform based on their speech. There could be a First Amendment issue if a government entity made a similar type of decision based on speech.

State Laws

Some states, but not Virginia, have offered state legislation that protects employees from being terminated for legal, off-duty speech that does not conflict with the employers business-related interests.

States of note that offer this minimal protection include California, New York, Colorado, North Dakota and Montana. Even under these laws, it would be relatively easy for an employer to establish that off-duty hate speech interferes with an employers business interests (e.g., boycotts). In short, there is no true legal protection for hate speech for private employees in these states.

Recent Issues Relating to the Charlottesville Tragedy

These issues have arisen principally as a result of the identification of far-right protesters by various social media groups that have identified hate-speech protesters and then contacted their employers, schools, and friends.

The principal group that has engaged in this tactic is the Twitter account, YesYoureRacist. The group has apparently had success in convincing employers to terminate employees based on their participation in the Charlottesville protest.

Obviously, employers would much rather terminate an employee involved in free speech than face the consequences of a boycott. Can they do so? Yes, they can. Why? Because the First Amendment protects the right of people engaging in hate speech, but it also protects their employers who do not wish to be associated with them.

As such, First Amendment rights go both ways. Free speech protects the ability of citizens to speak and engage in other forms of hate speech without the government banning it. However, it does not protect individuals who engage in hate speech from the consequences of their actions. In other words, there should be no misconception that the Constitution provides a First Amendment right to engage in hate speech and not suffer the potential consequences of being fired for that very speech.

If you need assistance with an employment issue, please contact our office at 703-668-0070 or at http://www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at http://www.facebook.com/BerryBerryPllc.

More:
Legal Insider: Does the First Amendment Protect Hate Speech and Your Job? - ARL now

The hateful signs and speech of the infamous Westboro Baptist Church have become synonymous with soldiers funerals.

As deplorable as their message is, it is protected under the First Amendment and must remain so.

In that vein, the Eighth Circuit Court of Appeals struck an appropriate balance in upholding Nebraskas funeral picketing law as constitutional in a ruling released Friday morning. The 500-foot buffer allows funeral-goers space to grieve while not infringing upon protesters right to free speech.

Even the churchs despicable rhetoric merits protection. The First Amendment makes no distinction between popular speech productive to society and speech that is abhorrent. Celebrating the deaths of soldiers as some twisted sign that God is punishing the United States for tolerating homosexuality is certainly the latter.

The case that came before the court centered on the 2011 funeral of Navy SEAL Caleb Nelson in Omaha. There, Westboro members were still allowed to picket and share signs that read God Hates Fags with passersby. Nelsons family and friends, meanwhile, could grieve without being forced to consume Westboros venom as should be the case.

As Judge Bobby Shepherd wrote in the opinion: The First Amendment guarantees free speech, not forced listeners.

"This law strikes the appropriate balance between First Amendment free speech rights and the rights of grieving families to bury their loved ones in peace," Nebraska Attorney General Doug Peterson said in a release after the ruling.

Though first written more than 230 years ago, the First Amendment remains under a microscope for interpretation in the present era. The boundaries of speech and expression are always being pushed by a new group, aiming to win over hearts and minds, regardless of the content of that message even if its one we wish could be silenced.

Part of the irony of Westboros ongoing crusade to parlay the deaths of soldiers into a megaphone for the churchs message of hate is that the freedoms for which these men and women fought and died still protect Westboros right to spread its vile opinions.

Judges and attorneys constantly have to take into consideration speech and dissemination the Founding Fathers never would have dreamed of seeing and few entities are more responsible for that evolution than Westboro. After all, the churchs success in a previous court case invalidated Nebraskas previous 300-foot buffer, which was replaced by the 500-foot limit upheld this week by the courts.

The outcome of Fridays ruling was the best of both worlds preserving families chance to grieve in peace without restricting Westboros ability to deliver its appalling message.

Read more:
Editorial, 8/13: Court strikes right balance on Westboro ruling - Lincoln Journal Star

Marcus Martin was injured when a Dodge Challenger drove through a group protesting an white nationalist rally Saturday in Charlottesville, Virginia.

Alex Jones, a conspiracy-minded conservative commentator, said the Charlottesville, Va., protests and counter-protests on Aug. 11-12, were staged acts of civil unrest funded by liberal interests to hurt conservatives and President Donald Trump.

In a pair of videos posted on his website Infowars.com, Jones accused the Southern Poverty Law Center of going to "central casting" to hire actors to "dress up as white supremacists." There is no evidence that is true, and Jones provided no evidence to support his claim in his video.

Jones then claimed the foundation for the Charlottesville protests is seen in emails between the Democratic Party and George Soros, a billionaire who often supports liberal causes.

"It was clear once Trump got inaugurated, they were going to go for civil unrest," Jones said.

"If you go back to the Wikileaks, from over a year ago, the Democratic Party is sending emails to George Soros and back and forth at the highest levels of the Democratic Party saying, Were losing the public. Minorities are getting into the free market. We (Democrats) want to keep people in their mothers basement as baristas.

"Remember even Hillary said that. What are we going to do to keep control of them? Keep them in the dark, keep them desperate.

"These are quotes. Hundreds and hundreds of emails," Jones said." Weve covered them linking to them."

While Jones offered no evidence the Charlottesville protests were staged, he did say there are quotes from Soros, Clinton or Democratic Party officials in emails talking about controlling minoritiesand stoking fear in the public to "keep them desperate" and "keep control of them."

So we decided to see if there is any evidence of that.

We couldnt find any. (We reached out to Jones through the media contact form on his Infowars.com website and did not hear back.)

For this fact-check, we consulted three email batches Jones could be talking about -- the emails Hillary Clinton made public during her time as secretary of state (search the government database), the leaked emails of Clinton campaign chairman John Podesta (search the Podesta emails), or the leaked emails of the Democratic National Committee (search the DNC email database).

The George Soros connection

Jones claimed the "Democratic Party is sending emails to George Soros and back and forth at the highest levels of the Democratic Party saying, Were losing the public. Minorities are getting into the free market. We (Democrats) want to keep people in their mothers basement as baristas."

There are 15 emails in the DNC email database that mention the word "Soros," and five of those come from Politico email newsletters. Of the remaining 10, five reference news coverage and one is text of a speech from Trump referencing Soros ("Forget Soros, leave him alone, hes got enough problems.")

The other four are from May 22, 2016, and discuss a mobile application someone was building to support the Democratic nominee. The developer of the application was looking for funding for the project, including from Soros.

We also searched under Soros Open Society Foundation or OSF. We found four additional emails, the most interesting of which appears to be a communications officer for OSF trying to schedule a tour of the White House.

We did find an email, which Infowars has written about, that Soros sent to Clinton while she was secretary of state (see the email).

The 2011 email is about unrest in Albania, which included a series of anti-government protests amid corruption charges.

In the email, Soros asks Clinton to bring "the full weight of the international community" to try and ease tensions in the country. Soros writes that he is particularly concerned of the actions of Albanias prime minister and that Soros has heard of videotape showing national guard members firing on demonstrators.

Infowars also has written about a 2014 email from Podestas account in which Clinton campaign manager Robby Mook said Clinton would only attend a fundraiser for a Soros-supported group, America Votes, "to make Soros happy."

The most recent emails leaked from Podestas account are from March 2016, and seem to be related to a meeting between Soros and Podesta.

"In general I think George is more interested in talking about policy than the campaign per se, though I cant imagine you wont spend some time on politics," Soros aide Michael Vachon wrote (read the email). "In a separate email I will send you Georges latest thinking on the migration crisis, which he is spending a lot of time on. His other big preoccupation these days is Ukraine. Both the migration crisis and Ukraine are part of his view of Europe as falling apart, and the US as ultimately not doing enough to prevent the political disintegration of its most important ally."

Heres the bottom line: Whatever the emails say about Soros access to top Democrats, including Clinton, they dont say anything akin to what Jones claimed.

The Hillary Clinton connection

Its a bit easier to triangulate what Jones was talking about when he said, "Remember even Hillary said that. What are we going to do to keep control of them. Keep them in the dark, keep them desperate. "

Hes likely referring to leaked audio of a February 2016 Clinton fundraiser in which Clinton was talking about the supporters of Bernie Sanders. Infowars wrote about this, too.

Here is what Clinton said (bold emphasis is ours):

Clinton: "Some are new to politics completely. Theyre children of the Great Recession. And they are living in their parents basement. They feel they got their education and the jobs that are available to them are not at all what they envisioned for themselves. And they dont see much of a future. I met with a group of young black millennials today and you know one of the young women said, "You know, none of us feel that we have the job that we should have gotten out of college. And we dont believe the job market is going to give us much of a chance." So that is a mindset that is really affecting their politics. And so if youre feeling like youre consigned to, you know, being a barista, or you know, some other job that doesnt pay a lot, and doesnt have some other ladder of opportunity attached to it, then the idea that maybe, just maybe, you could be part of a political revolution is pretty appealing. So I think we should all be really understanding of that and should try to do the best we can not to be, you know, a wet blanket on idealism. We want people to be idealistic. We want them to set big goals. But to take what we can achieve now and try to present them as bigger goals."

You can listen to the comments here, courtesy of the Intercept, but you can see how Jones distorts Clintons comments.

Jones said Democrats wanted to keep "people in their mothers basement as baristas," to "control them," "keep them desperate."

But Clinton was talking about people new to politics who grew up at a time when opportunities were difficult to find. She never once discussed controlling or keeping people desperate. Clinton did face criticism for describing Sanders supporters as people living in their parents basement, but thats not what Jones was saying.

Our ruling

Jones said, "if you go back to the Wikileaks, from over a year ago, the Democratic Party is sending emails to George Soros and back and forth at the highest levels of the Democratic Party saying, Were losing the public. Minorities are getting into free market. We (Democrats) want to keep people in their mothers basement as baristas. "Remember even Hillary said that. What are we going to do to keep control of them? Keep them in the dark, keep them desperate.

Jones comments were part of a broader accusation that the events in Charlottesville were staged by liberals and coordinated by top Democrats.

We can find no evidence that Jones broad attack, or his specific claim about comments made by Soros, Clinton or Democrats in emails, checks out. Clinton did describe supporters of Bernie Sanders as working as baristas or living in their parents basements. But thats well short of what Jones alleged.

We rate this claim Pants on Fire.

Share the Facts

2017-08-14 17:12:21 UTC

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Pants on Fire

Emails show Democrats, Hillary Clinton and George Soros instigated and orchestrated racial protests in Charlottesville by trying to "control" and keep people "desperate."

Alex Jones

Editor, Infowars

In a video

Saturday, August 12, 2017

2017-08-12

Here is the original post:
Infowars' Alex Jones falsely says George Soros, Hillary Clinton instigated Charlottesville violence - PolitiFact

In this April 6, 2017, file photo, former United States Secretary of State, Hillary Clinton speaks during the Eighth Annual Women In The World Summit at Lincoln Center for the Performing Arts in New York City.

For over 600 days, Hillary Clinton's pastor wrote daily inspirational letters drawn from Biblical scripture during the presidential campaign.

Hundreds of those letters have now been compiled in a book, "Strong For a Moment Like This." The collection features a letter sent in the aftermath of her election loss.

Rev. Dr. Bill Shillady, the New York-based executive director of the United Methodist City Society, has been a longtime friend and pastor to the former U.S. secretary of state, senator and first lady.

I wrote to her on a daily basis. If I was not writing then there was team of writers, Shillady said during a phone interview with NBC.

The collection, published by Abingdon Press, includes 365 of the more than 600 devotions written for Clinton, along with personal notes, portions of her speeches, and headlines that provide context for that days devotion.

On the difficult days, like the terrorist incidents, we dug deep and found gratitude for life, he said.

The day after the 2016 election, Shillady sent a letter beginning with the title "Sunday Is Coming" and ending with one of his cherished phrases.

"You know one of my favorite sayings is 'God doesn't close one door without opening another, but it can be hell in the hallway,'" he wrote in the last paragraph. "My sister Hillary. You, our nation, our world is experiencing a black Friday. Our hope is that Sunday is coming. But it might well be hell for a while."

Here is the letter "Sunday Is Coming":

According to Shillady, the post-election letter has been shared over 40,000 times on social media. The letter shares the struggle of disciples after the loss of Jesus Christ and the reminder that for Clinton there was more to be grateful for in life.

Most of the response has been positive and some thought I was comparing her to Christ that is simply not true, he said. If you really read it then you will understand.

The book, "Strong For a Moment Like This,"is due for sale in stores and online on Aug. 15.

Shillady and his team of writers came from different backgrounds, including Presbyterian, Baptist and a clergy of women. All the clergy writers, hopeful about the outcome of the election, used daily news headlines as a source of inspiration for the devotions.

A German theologian Karl Barth said something like 'a pastor is not worth their weight if they dont have a newspaper in one hand and a Bible in the other,' he said. [The devotions] reminded her that she was child of God and of her strength, qualities this campaign demanded from her.

NBC contacted the Clinton Foundation for a comment about the book and have not yet received a response.

Shillady said each chapter in the book is organized into 12 themes, such as forgiveness, doing good, courage, and women.

Published 2 hours ago

The rest is here:
Hillary Clinton's Pastor Reveals Post-Election Letter in Book - NBC4 Washington