Clayton Bailey '18
Michael Dooley '18
Over the past few months, UVa Law students have responded to the events of August 11 and 12, 2017 with grace and conviction. Their accounts of the events, and reactions to them, have been published in numerous outlets, including The New York Times and the Virginia Law Weekly. I am so proud to call many of these people, who spoke out passionately for their beliefs, my friends. Their collective reaction shows the true character of our community. Much like our classmates, members of the Virginia Law Review were horribly disturbed by the scenes of violence and hate that made “Charlottesville” national shorthand for the dangers of white supremacy. In the aftermath, fighting the feeling of helplessness that comes when confronting true tragedy, we turned to the law. These events did not happen in a vacuum. They were influenced—and, to an extent, even dictated—by background legal principles that govern our state and our country. Perhaps by examining these questions of law, we can advance our understanding of the incomprehensible actions of men.
This week, it is our pleasure to publish in our Online companion a number of scholarly essays, written by UVa students and faculty, that seek to do just that. The full essays can be read at virginialawreview.org, and a panel discussion with the authors will be held Thursday, February 1 at 1 p.m. in Purcell Reading Room. Lunch will be provided.
The essays alternate between U.S. constitutional law and the relationship between states and municipalities. A brief summary of each piece follows, in order of its appearance in our symposium.
Professor Farah Peterson, who joins our faculty this semester, provides the introduction to our symposium. She explores how the events of August 11 and 12 may have come about, drawing connections to the sordid elements of our country’s recent history. Despite the horror and chaos, Professor Peterson recognizes the abundant potential for change and our role in bringing it forth.
Timothy Horley’s essay, Rethinking the Heckler’s Veto After Charlottesville, asks one of the most difficult questions in First Amendment law: when can a speaker’s expression that is likely to provoke a violent response from listeners justify government intervention against the speaker? Examining the morass surrounding the issue, he proposes drawing on the test created by the Supreme Court in Brandenburg v. Ohio. This solution, he argues, would better protect speakers’ rights while expanding the ability of authorities to intervene before violence occurs.
In her essay, Your ‘Little Friend’ Doesn’t Say ‘Hello’: Putting the First Amendment Before the Second in Public Protests, Kendall Burchard addresses an issue that was on plain display on August 11 and 12—whether the states are (or should be) able to restrict the presence of firearms at protests. Exploring the current state of the law, she concludes that protests should be recognized as “sensitive places” where states are permitted to bar such weapons.
Amanda Lineberry’s essay, Payne v. City of Charlottesville and the Dillon’s Rule Rationale for Removal, addresses Virginia’s ability to remove the Lee Statue that ostensibly served as a reason for numerous protests in Charlottesville, including the “Unite the Right” rally on August 11 and 12. Discussing decades of statutory grants that permitted localities to erect monuments, she determines that the statutory grant under which the statue was purportedly erected, as well as subsequent statutes, cannot serve as a legal bar to its removal.
Finally, Professor Richard Schragger’s essay, When White Supremacists Invade a City, argues that Charlottesville’s response to the events of August 11 and 12 was a result of its weakness and liminal status under Virginia (and United States) law. Since cities like Charlottesville are not afforded the rights granted to private corporations and lack the full power of the state—instead relying upon specific grants of authority—they have limited abilities to respond to crises. Professor Schragger asks whether this should be the case, particularly given all that we demand from our cities and municipalities.
In her thoughtful foreword, Professor Peterson invokes Justice Thurgood Marshall’s optimism for the capacity of law. While anger and protest are often necessary in the face of injustice, we learn in law school that change can also be found “through the rule of law and the elaboration of legal principles.” It is the “mutually enforcing efforts of law and protest, of anger and optimism, that have dragged this country out of the darkness of the early twentieth century, and that are responsible for all of the civil rights gains we have made.” Today, we continue this tradition of optimism. While we would love to believe that “Charlottesville” was a turning point, the final thrust of a dying sentiment of hate, more dark days may yet litter our path forward. But we are confident that these challenges, legal and otherwise, will be overcome by the men and women of compassion and capacity who inevitably rise to meet them.