Introduction

The past few years have witnessed a rise in violence at far-right protests and rallies nationwide. In places as diverse as Berkeley, California, and Murfreesboro, Tennessee, white supremacist and white nationalist groups have organized rallies with the self-avowed goal of provoking a response from counter-protesters, including anti-fascists. These events have yielded violence, as evidenced most prominently by the street battles and the death of Heather Heyer at the “Unite the Right” rally in Charlottesville, Virginia, in August 2017. These kinds of confrontations began well before Unite the Right, however, and have continued since, with contentious protests and rallies occurring in major cities like Portland, Oregon, and Dayton, Ohio, and smaller cities in Georgia, Tennessee, and elsewhere. More recently, in the wake of the police killing of George Floyd, heavily armed far-right militias have shown up at protests for racial justice, sometimes purporting to “protect” property and statues and sometimes openly seeking to stoke riots. The result is too often the same: physical violence among warring groups of protesters, property damage to local businesses, sky-high costs for localities seeking to protect public safety, and loss of public trust in government’s ability to keep residents secure.

After the Unite the Right rally, the Institute for Constitutional Advocacy and Protection (ICAP) used litigation as a tool to prevent similar violence at future demonstrations and rallies. Representing the City of Charlottesville, local businesses, and residents’ associations, ICAP sued nearly two dozen white nationalist and militia groups and their leaders under Virginia state law, and obtained permanent injunctions preventing these groups from returning to Charlottesville acting as armed private militaries. The lawsuit, based on the state constitution’s prohibition on private militias and state laws barring private paramilitary and unauthorized law enforcement activity, aimed at preventing violence and incitement to violence while protecting constitutional rights. Following that successful litigation effort, ICAP has been contacted regularly by localities facing upcoming protest events they fear could turn violent. ICAP has worked with them to develop legal tools to allow local governments to impose reasonable content-neutral conditions on events in public spaces; draft permit restrictions for upcoming rallies, consistent with the First Amendment, Second Amendment, and relevant state laws; design security protocols to ensure public safety while protecting constitutional values; and use alternative mechanisms, including litigation, to preempt unlawful, violent activity.

The need for these tools often begins when local officials learn that a white nationalist group intends to hold a rally or demonstration in their jurisdiction. They usually have some information—even if only from social media or the local activist community—about whether the group intends to be armed and whether it is expected to draw armed counter-protesters. They often are trying to navigate between the requests of their elected officials about how to respond, the needs of public safety, financial costs and other resource considerations, and concerns about litigation risk if the measures they take run afoul of constitutional rights. ICAP assists by helping to develop a constitutionally sound and legally defensible plan, often on short notice, to help ensure public safety, defray costs where possible, and minimize litigation risk.

But local officials aren’t the only people who seek legal guidance on these issues. As protests against police brutality and racial injustice have spread across the country more recently, concerned residents and activists increasingly have reported that their peaceful marches and vigils have been met with intimidating militia members bearing assault rifles, dressed in military gear, and often shouting down their messages. In some cases, local officials have failed to take action, mistakenly believing the paramilitary activity is lawful. ICAP has responded with letters to those officials, setting out the relevant law and debunking the widely held myth that the Second Amendment protects the right to assemble as a private militia outside any governmental authority. These letters have led to a decrease in militia activity in some jurisdictions, press coverage that enhances public understanding in others, and productive conversations aimed at reducing the threat.

In the present moment, it is more important than ever that local jurisdictions understand their role in fostering First Amendment activity while protecting the safety of protesters and the public. Having developed a body of knowledge and proven results, ICAP seeks to scale what it has learned by providing this toolkit of legal options. In it you will find legal principles, best practices, and creative solutions upon which local jurisdictions may draw to protect public safety while respecting constitutional rights during rallies, protests, and other public events. The toolkit offers detailed legal analysis suitable for municipal and state attorneys, as well as more general legal guardrails, best practices, and frequently asked questions intended to be more easily accessible to non-lawyer elected and appointed officials, concerned residents, and activists.