Richard B. Spencer (Wikipedia) organized and led a protest march on Oct. 7th, 2017 in Charlottesville, Virginia, drawing this reaction from Charlottesville Mayor Mike Signer on Twitter:

“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.” MikeSigner/status/916838439567482881

The mayors' reaction was a result of the August 11–12, 2017 Unite the Right rally (Wikipedia) that resulted in a death and injuries.

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?

Are any of these options possibly successful, considering state and federal laws?

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?

2) Can a group be banned because of limits on crowd sizes? For the lack of a permit to gather or parade?

3) Can the city justify the ban of a group because of past violence?

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?

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?

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    1) No; see the first amendment. Any ban must be motivated by considerations other than "religious or political beliefs or views." For 2-4, the answer is mostly yes, but I'll leave it to someone better versed in the applicable jurisprudence to explain why. For 5, what do you mean by "an arbitrary number of named individuals"? Do you imagine a list of names, from which no more than a certain number can be in one place at one time? Or did you have something else in mind? – phoog Oct 9 '17 at 3:09
  • I clarified #5 a bit, but it may not be a real possibility; I'm thinking of other protests I've heard where people gather for a common cause but, when questioned, do not claim to be in a group. #2 should be clear that it is about crowd sizes. – BlueDogRanch Oct 9 '17 at 3:47
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    Do note that I first read that the proposed march was to take place six days after 4th of July this year. Even on a question tagged "USA", it's useful to use a less ambiguous date format. – Martin Bonner supports Monica Oct 9 '17 at 9:31

This ACLU article 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 assembly 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", Cox v. Louisiana 379 U.S. 536). Even if a past event by the organization has resulted in violence, a subsequent event cannot be prohibited (U.S. v. Baugh, 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.

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 do have that right with respect to public places. (Not absolutely all places, e.g. not on a military base).

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 (Bay Area Peace Navy v. U.S, 914 F.2d 1224). Limitations have to be reasonably and narrowly related to safety and disruption concerns, or to regulate competing uses (Forsyth County, Ga. v. Nat’list Movement, 505 U.S. 123). Even if all protests are equally subject to unreasonable restrictions, the restrictions would be unconstitutional.

  • 2nd paragraph alludes to the public forum vs. designated public forum. The former includes things like streets, sidewalks, and parks. These have historically been open to speech-related activities. Other public property that historically has not been open to such activities, but which the government has allowed access to for such activities on a permanent or limited basis, include schools that open classrooms for after-school use by civic, social, or rec groups. Alternatively, schools while class is in session, military bases, etc., are considered nonpublic forums and subject to regulation. – A.fm. Oct 9 '17 at 16:52
  • 2nd para does not allude to nonpublic forum ("with respect to public property and private property"). It responds to OP q. 4 regarding private vs. public spaces. I have no idea what OP has in mind in this respect, but I assume it's not the tricky legal concept of "nonpublic forum". – user6726 Oct 9 '17 at 17:00
  • Didn't mean to say it alluded to nonpublic forums, but nonpublic fora simply possess a lower standard for approval of a regulation – A.fm. Oct 9 '17 at 17:04
  • I edited my question; I meant the difference between private land (where the protest has been invited to take place) and public spaces that are used by the groups. – BlueDogRanch Oct 9 '17 at 18:15
  • @BlueDogRanch some public spaces are private land. Whether a place is a public or private place is not generally determined by whether it is public or private property. – phoog Oct 9 '17 at 18:49

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.

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."

  • The city can also say "you can protest on this date but not that one", but given the comments from the mayor, any ban for the specific date of 7th October 2017 would be likely to be overturned on the basis that it was actually about the political views of the group rather than the date. (See the challenges to Trump's travel bans that they were actually about the religion of the passengers.) – Martin Bonner supports Monica Oct 9 '17 at 9:35
  • Agreed. At this point, it is possible the only way the group could be stopped from protesting on the given date that could withstand scrutiny would be one applied previously to other groups in the same way, thus making the mayor's statements/opinion irrelevant to the question. – A.fm. Oct 9 '17 at 10:01
  • The only legal date-related limit would pertain to reasonable processing time for a permit, and in response to unplannable "emerging events", such delays are not held to be reasonable. – user6726 Oct 9 '17 at 15:26
  • In US jurisdictions, the government can restrict free speech with respect to its time, place, and manner so long as the regulation is not about the content of the speech to be delivered, the regulation is tailored narrowly to serve a significant government interest, and an alternative method of relaying the intended message is preserved (this does not have to be the same method as originally intended nor does it have to reach the same audience). So the date reasoning is not confined to reasonable processing time. – A.fm. Oct 9 '17 at 15:45

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