Virginia Gov. Terry McAuliffe Issues Executive Order That Violates First Amendment

National Governors Association (NGA) Vice Chair, Virginia Gov. Terry McAuliffe speaks at the National Press Club in Washington, Thursday, Jan. 7, 2016. (AP Photo/Susan Walsh)
AP Photo/Susan Walsh

Virginia Gov. Terry McAuliffe signed an executive order late Friday halting demonstrations at Lee Monument in Richmond for the next 90 days. That order violates the First Amendment.

“In spite of weeks of preparation, the city of Charlottesville was the target of an act of domestic terrorism that cost one woman her life, and had a helicopter accident lead to the deaths of two state troopers,” McAuliffe said in a statement that accompanied the executive order:

In the aftermath of this tragedy, several groups have requested permits to hold similar-styled events at the Lee Monument in Richmond. State and local officials need to get ahead of this problem, so that we have the proper legal protections in place to allow for peaceful demonstrations, but without putting citizens and property at risk. Let me be clear, this executive order has nothing to do with infringing upon first amendment rights. This is a temporary suspension, issued with the singular purpose of creating failsafe regulations to preserve the health and well-being of our citizens and ensuring that nothing like what occurred in Charlottesville happens again.

The statement added:

Governor McAuliffe will issue a related executive order convening a task force, headed by Secretary of Public Safety and Homeland Security Brian Moran to study the safety concerns that arose from the events of August 12th. The Department of General Services will craft their new emergency regulations based on the recommendations of this new task force, which will be issued within three months.

Citing “the power vested in me as the Chief Executive by Article V of the Constitution of Virginia and the laws of the Commonwealth,” McAuliffe ordered the following:

No demonstrations shall be authorized at the Lee Monument in the absence of a permit issued by the Department of General Services. The term “demonstrations” includes demonstrations, processions, picketing, speechmaking, marching, vigils, and all other like forms of conduct, that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. This term includes the display of flags, banners, or other demonstratives designed to communicate a message.

The Department of General Services is directed to promulgate emergency regulations by November 18, 2017 to govern any public use of the Lee Monument based upon the recommendations from this task force.

Breitbart News contacted several constitutional law experts, none of whom would go on the record on such short notice to comment, for fear of retribution.

Breitbart News also contacted the executive director of the Virginia ACLU for comment but has not received a response.

Despite McAuliffe’s assertion, the executive order “has nothing to do with infringing upon First Amendment rights,” one constitutional law expert told Breitbart News on background that the executive order violates the First Amendment.

“A 90-day ban on expression here violates the First Amendment. This sort of restriction is subject to ‘strict scrutiny,’ under which the restriction is presumed unconstitutional, and the government must prove that is it narrowly tailored to achieve a compelling public interest. This EO should fail that test,” the expert said.

The constitutional law expert anticipates that any legal challenge to the executive order will likely end up at the Supreme Court.

“However, this is Virginia, which on appeal is in the Fourth Circuit. That court is now the most liberal appeals court in the nation, to the left of the often-maligned Ninth Circuit–ten liberals, two moderates, and only three conservatives. And there are no vacancies on the 15-member court, so it would probably take multiple consecutive terms of Republican presidents to take it back. The challengers would face an uphill battle in front of the Fourth Circuit,” the expert added.

“The order violates the First Amendment,” another constitutional law expert told Breitbart News.

“The state will say it is content neutral, and some statist judge could uphold it on those grounds, but that’s a corrupted interpretation of the First Amendment, which we all know is common,” the expert added.

Cornell University Law Professor William Jacobson wrote at Legal Insurrection that there are a number of such “gathering storms and threats to liberty.”

“As part of the reaction to Charlottesville, the NY Times ran a chilling Op-Ed by K-Sue Park, a housing attorney and the Critical Race Studies fellow at the U.C.L.A. School of Law,” Jacobson noted, adding, “The Op-Ed is chilling because it represents a significant strain in the legal community and on campuses, that freedom of speech needs to be viewed in a social justice narrative.”

In that New York Times op-ed, “The A.C.L.U. Needs to Rethink Free Speech,” Park wrote:

The American Civil Liberties Union has a long history of defending the First Amendment rights of groups on both the far left and the far right. This commitment led the organization to successfully sue the city of Charlottesville, Va., last week on behalf of a white supremacist rally organizer. The rally ended with a Nazi sympathizer plowing his car into a crowd, killing a counterprotester and injuring many.

After the A.C.L.U. was excoriated for its stance, it responded that “preventing the government from controlling speech is absolutely necessary to the promotion of equality.” Of course that’s true. The hope is that by successfully defending hate groups, its legal victories will fortify free-speech rights across the board: A rising tide lifts all boats, as it goes.. .

The A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law. It must research how new threats to speech are connected to one another and to right-wing power. Acknowledging how criminal laws, voting laws, immigration laws, education laws and laws governing corporations can also curb expression would help it develop better policy positions.

“Park’s view is standard critical race theory narrative, that’s what makes it so chilling,” Jacobson concluded.


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