The American Civil Liberties Union of Virginia on Monday called Gov. Terry McAuliffe’s order to temporarily block protests at the Confederate Gen. Robert E. Lee statue in Richmond “constitutionally suspect.”
The statement comes three days after McAuliffe issued an executive order barring public demonstrations at the monument, citing safety concerns after violence broke out at a gathering of white nationalists in Charlottesville.
He said no protests would be allowed at the Lee statue for three months to allow a task force to write regulations that would allow protests in a peaceful manner.
The Lee statue — a bronze depiction of Lee on his horse that stands 21 feet tall and is mounted on an oval-shaped granite pedestal 40 foot high — sits in roundabout along Monument Avenue, a grand boulevard in a residential neighborhood lined by four other Confederate statues. The statue was dedicated in 1890.
Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, said fear or safety worries should not diminish the commitment to basic rights, including freedom of speech, guaranteed by the Constitution.
“It is a sad reality of this moment that nearly every protest carries with it a risk of violence,” she said in a statement. “We cannot allow fear and loathing to drive us to abdicate the rule of law or temper our fealty to basic constitutional principles. We cannot allow government to use safety considerations as a thin veil for broad and sweeping prior restraints on our speech or other expressive activities in public spaces.”
Still, the ACLU is not planning a legal challenge at this time, Gastañaga said.
McAuliffe has said he does not intend to infringe upon First Amendment rights to speech and peaceful assembly. Rather, he wants to protect residents and potential protesters from anything like the Charlottesville riots, he said.
In addition to the woman, Heather Heyer, killed by a vehicle that rammed a crowd at the Charlottesville protest, Virginia State Police Trooper-Pilot Berke M.M. Bates and Lt. H. Jay Cullen died while patrolling the area from the sky. McAuliffe knew them well and spoke at their funerals.
The governor has said some of the blame for the day’s violence rests with the ACLU, which had successfully sued to block the city of Charlottesville from moving the protest from a small downtown park to a larger park where authorities felt they could exercise better crowd control.
Brian Coy, McAuliffe’s spokesman, said the ban on protests at the Lee monument in Richmond is needed to “allow public officials to absorb the lessons of Charlottesville and make informed, fair and consistent decisions to allow the exercise of free speech in a way that keeps people and property safe.”
Gastañaga said the ACLU supports work by McAuliffe and others to develop rules for protests, including limits on carrying weapons, but that his order goes too far.
“The Governor’s broad and sweeping prohibition of all speech in a particular public forum for up to 90 days is, however, constitutionally suspect.”
Only a judge can justify prior restraint of free speech through evidence of an imminent threat of harm by one or more speakers, she said.
“The decisions we allow our leaders to make in this moment should not be ones that empower future leaders to use them as precedent in the pursuit of tyranny,” Gastañaga said. “Without a safe, secure and nonviolent space for the free expression of ideas — even the most hateful ones — there can be no true freedom in academic, artistic, scientific or political affairs.”
The ACLU on Sunday called for the removal of Confederate monuments and memorials, saying “inciteful symbols of hatred and bigotry” draw white supremacists like moths to a flame” and they “must go.”
The organization said the General Assembly should reverse the state law barring localities from removing monuments for war veterans, and remove money from the state budget for the care and maintenance of Confederate monuments on public and private property.
McAuliffe last week encouraged localities and the legislature to take down monuments and relocate them to museums or more appropriate settings. He told reporters on Monday he would likely file legislation to remove the state-owned Lee statue.
In 2016, McAuliffe vetoed a bill that would have prohibited cities and counties from removing war memorials, including Civil War monuments.