A local protest in support of the Black Lives Matter movement ended ahead of schedule June 13 following a clash between protesters and counter-protesters. The otherwise peaceable protest came to an end after heated verbal exchanges between the two groups took place in front of the courthouse.
The tensions that continue to follow the event have left some residents questioning why Town of Marion officials and police would allow such an event to take place.
Roanoke civil rights attorney John Fishwick, who previously served as a federal prosecutor, shed light on the issue, explaining that a town doesn't really have the ability to prohibit a protest.
“The first amendment right to assemble and free speech is a powerful right in this country,” he said. “A government cannot pick and choose on what speech they want to endorse and not endorse.”
Fishwick said individual towns and counties can put reasonable restrictions on the time, place and manner of a protest, but cannot nix one altogether. Doing so, he said, could lead to a lawsuit.
“They could be sued in federal court,” he said, adding that damages and attorney's fees would likely be sought in such a suit.
According to the American Civil Liberties Union, while the first amendment of the U.S. Constitution guarantees the right to free speech and assembly, processes to exercise those rights may exist in some public forums.
Marches held on the streets within Marion town limits, for example, should be coordinated with town officials. Assemblies held on courthouse property would need to be coordinated with county officials. Though the courthouse is within town limits, it is a county building and under the county's authority.
While municipalities can require permits to assemble in traditional public forums, such as on streets, sidewalks or parks, they are not required to do so, Fishwick said.
“It's left up to the individual location and again, those restrictions have got to be reasonable as far as time, place and manner.”
The ACLU notes on its website that permits, when required, cannot be denied because an event is controversial or may express unpopular views.
Recent protests in other parts of the nation have at times turned into violent riots, ending in the destruction of several historical monuments and other properties. At the courthouse on June 13, the group of counter-protesters gathered on the lawn near the monument of the Confederate dead. The gathering is believed to have been fueled by social media rumors warning that protesters planned to tear the statue down.
According to the ACLU, counter-protesters have the same rights to free speech and assembly as protesters. The organization notes, however, that police can keep antagonistic groups physically separated while still in view and earshot of one another.
“Restrictions can be reasonable and it certainly would be reasonable to keep protesters and counter-protesters away from each other,” Fishwick said. “The one lesson of Charlottesville is that that's going to be enforced.”
In 2017, a Unite the Right rally in that city turned deadly after a car mowed over a group of counter-protesters, killing 32-year-old Heather Heyer and injuring 19 others.
An independent review commissioned by the city, pointed out several areas where police and city leaders failed in preparing for and managing the two-day event.
When Marion Police Chief John Clair heard about the planned protest in Marion, he reached out to organizers to help safely coordinate the march.
“If we don't take reasonable measures to coordinate, then they will happen in uncoordinated and unsafe ways and that's not healthy for the community either,” Clair explained.
Though law enforcement didn't anticipate any violence during the event, they worked together to collaborate on contingency plans in case they were needed. Behind the scenes, Marion PD and the Smyth County Sheriff's Office coordinated with the Virginia State Police, the Virginia Department of Emergency Management and law enforcement agencies in surrounding jurisdictions.
While violence was not anticipated, law enforcement was not unprepared for potential confrontations, Clair said.
As recommended by the independent review of the Charlottesville event, the PD implemented an incident command structure with other agencies involved to prepare for any civil disobedience that could have arose.
Marion officers and sheriff's deputies had a strong presence during the protest and at the courthouse. When protesters and counter-protesters began to clash, the officers formed a barrier, stepping in between the two groups to ensure those on either side could express their views while also keeping them physically separated.
“From what I've read about the situation there, it looks like law enforcement was smart about the situation,” Fishwick said. “They stayed in touch with leaders of the group and permitted the protest to go forward and didn't try to break it up.”
Fishwick said that while law enforcement does have the authority to order protesters to disperse when events become unsafe, they have to be sure such dispersals are for objective safety reasons.
“They've got to always be careful when they do that that it's for objective safety reasons,” he said. “If they're not objective safety reasons, you run the risk of obviously making a situation much, much worse.”
He also pointed out that arrests can and should be made whenever laws are broken.
“If any group protests and laws are broken, then they can be arrested for breaking those laws. For example, if a protester attacks a counter-protester or a counter protester attacks a protester physically, then they should be charged criminally.”
The confrontation in front of the courthouse, though vulgar and heated at times, remained mostly a verbal exchange between the two groups, Clair said. However, at one point during the exchange, he said, a male counter-protester was briefly detained after he took a swing at a female protester. The man was released after the woman declined to press charges and the two groups dispersed shortly after the incident. In a separate incident, an individual Clair referred to as an agitator was taken into custody on a public intoxication charge. He said the individual was not with the counter-protester group.
Both Clair and Sheriff Chip Shuler said their agencies are doing everything they can to ensure public safety during such events. Organizers have scheduled a second protest in support of the Black Lives Matter movement and the LGBTQ community on July 3. Clair said any groups planning response protests to the upcoming event are asked to also contact law enforcement so that those assemblies can be safely coordinated, as well.
“My burden is that the community be safe and there be no loss of life and there be no loss of property either,” he said. “And we are doing everything we can to ensure that that doesn't happen.”
“Ultimately, that's our job to protect life and make sure everything's peaceful and orderly and make sure nobody gets hurt and no property gets damaged,” Shuler said.
Clair said he is considering using what the Charlottesville independent review called the “stadium approach” during the upcoming protest, which he believes has the potential to draw a larger crowd.
According to the report, the stadium approach creates secure perimeters with designated entries, which enforces the separation of conflicting groups.
Fishwick said he believes that approach would be viewed as a reasonable restriction. “I think when you're trying to keep the community safe and trying to separate people who might get violent when right next to each other, I think that's going to be reasonable and be legal.”
While the use of profanity in protesters' chants and during the exchanges in front of the courthouse were points of concern for some residents, the centuries-old law criminalizing “profane swearing” in Virginia is set to be taken off the books on July 1.
Virginia Del. Michael Weber (R), who sponsored the House bill, told NPR in February that the bipartisan push for the repeal came as he and his colleagues agreed that the current code violated free speech and was unconstitutional.
“Profanity, although not helpful, in the context of the first amendment is protected,” Clair said.
Fishwick also pointed out that enforcement of the current code should be consistent across the board.
"It strikes me that law enforcement on a day-to-day basis don't charge people for using profanity, so why should you charge protesters?"
During a Sunday press conference calling for peace within the community, Clair said he did not expect any violence from protesters in the upcoming event. Organizers Travon Brown and David Sparks said during the press conference that they only wanted their voices to be heard and wanted the community to come together to embrace change.
“Travon and David have made it absolutely clear to me that they do not have a desire for confrontation, that they want the ability to exercise their constitutional rights and they want to coordinate with us to make sure that those exercise of rights is safe and equitable to everyone involved,” Clair said.