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Kessler V Charlottesville Appeal Brief
Kessler V Charlottesville Appeal Brief
In The
JASON KESSLER,
Plaintiff – Appellant,
v.
BRIEF OF APPELLANT
James E. Kolenich
KOLENICH LAW OFFICE
9435 Waterstone Boulevard, Suite 140
Cincinnati, Ohio 45249
(513) 444-2150
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TABLE OF CONTENTS
Page
ARGUMENTS ........................................................................................................... 5
B. Discussion ................................................................................... 6
B. Discussion ................................................................................. 10
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CONCLUSION ........................................................................................................ 15
CERTIFICATE OF COMPLIANCE
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TABLE OF AUTHORITIES
Page(s)
CASES
Berger v. Battaglia
779 F.2d 992 (4th Cir. 1985)........................................................................... 8
Boos v. Barry,
485 U.S. 312 (1988).........................................................................................7
Cantwell v. Connecticut,
310 U.S. 296 (1940).........................................................................................6
Collin v. Smith,
578 F.2d 1197, (7th Cir. 1978); ......................................................................7
Cox v. Louisiana,
379 U.S. 536, (1965);......................................................................................7
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Grider v. Abramson,
994 F.Supp. 840, 845-16 (W.D.Ky. 1998) .................................................... ..9
Musso v. Hourigan
836 F.2d. 736 (2d Cir.1988); ....................................................................10, 11
Ray v. Roane,
948 F.3d 222, 226 (4th Cir. 2020) ................................................................. ..5
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Reynolds v. Middleton,
779 F.3d 222, (4th Cir. 2015) ........................................................................ 14
Safar v. Tingle,
859 F.3d 241, 245 (4th Cir. 2017.) ................................................................ 10
Smith v. Ross,
482 F.2d 33, 37 (6th Cir. 1973); .................................................................... ..9
Startzell v. Fisher
533 F.3d 183, 200 (3d Cir. 2008) .................................................................. ..7
Texas v. Johnson,
491 U.S. 397 (1989)....................................................................................... ..7
Tobey v. Jones , ,
706 F.3d 379, 387 (4th Cir. 2013) ................................................................. ..9
Turner v. Thomas,
930 F. 3d 640 (4th Cir. 2019)……………………………………..6, 10, 11, 12
Williamson v. Stirling,
912 F.3d 154, 187 (4th Cir. 2018) ................................................................... 6
CONSTITUTIONAL PROVISIONS
STATUTES
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IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1704
JASON KESSLER,
Plaintiff-Appellee,
v.
Defendants-Appellants.
BRIEF OF APPELLANT
STATEMENT OF JURISDICTION
This case arises under the First Amendment to the United States
Constitution, U.S. CONST. amend. I, and 42 U.S.C. § 1983. The District Court
21, 2020, that Court granted each defendant’s motion to dismiss all the plaintiff’s
claims. (JA 391; DE 53). On June 18, 2020, the District Court overruled plaintiff’s
motion for reconsideration. (JA 422; DE 63). On June 29, 2020, plaintiff timely
appealed. (JA 428; DE 64). This Court’s jurisdiction rests on 28 U.S.C. § 1291.
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ISSUES PRESENTED
II. DID THE TRIAL COURT ERR IN FINDING THAT THE APPELLEES’
CANCELLING OF APPELLANT’S SPEECH DUE TO PUBLIC
DISORDER DID NOT CONSTITUTE JOINING OR ACQUIESCING IN
A HECKLER’S VETO?
Charlottesville, Virginia on August 12, 2017. (JA 21 ¶75-76.) Kessler had to sue in
the Western District of Virginia to secure his preferred event location. (JA 216.)
Kessler was to be be a featured speaker at the rally. (JA 11, 202, 204.) Kessler’s
speech was announced as an “Alt-Right” political event. (JA 11, 202, 204.) Alt
Right speech is considered deeply offensive by many due to it’s racist and anti-
hostility to Mr. Kessler’s planned speech and event. (JA 11-17). Appellees were
aware that certain members of the hostile public were highly likely to physically
attack Mr. Kessler and his supporters at the rally location. (JA 11-17; 203, 320)
of the resistance” to, inter alia, racism) including one, Wes Bellamy, whom Kessler
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had individually singled out for political opposition. (JA 156). Mr. Bellamy
resigned from his private employment after Mr. Kessler publicized some of Mr.
excuse to cancel Kessler’s speech. (JA 12, 14, 16, 17.) Appellees did so due to both
public and political opposition to the content of Kessler’s speech. (JA 11-17; 134,
140, 157 wherein a police officer stated that one elected official’s anti-Kessler
speech was “tantamount to war rhetoric”, and 162.) Appellees caused a large
number of police officers (JA 232, 239, and 262) to be present at the speech
location but ordered those police to ignore public disorder and violence until such
time as it was bad enough to declare an “unlawful assembly” under State law. (JA
17, 266.)
The expected melee did in fact occur despite members of the public begging
police to intervene. (JA 18, 20.) The unlawful assembly having been declared, Mr.
Kessler, who was at the designated speaker’s location and had identified himself to
police as both the event permit holder and a scheduled speaker, was ejected,
pursuant to the a priori plan of the Appellees, from the rally location together with
everyone else. No effort whatsoever was made to find a less restrictive means of
restoring the public order than the complete suppression of Mr. Kessler’s First
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Mr. Kessler filed suit against Appellees in the Western District of Virginia
bringing “heckler’s veto” based claims. (JA 10.) The District Court held, with no
known as the “Heaphy Report” was integral to the Complaint. (JA 394.1) The
Court then dismissed all claims for failure to state a claim on February 21, 2020
and overruled Appellant’s R. 59 motion on June 18, 2020. Mr. Kessler timely filed
All Appellees filed motions to dismiss for failure to state a claim. In examining
the case, the trial Court assumed that Kessler’s speech was protected by the First
Amendment. (JA 411). With one minor exception, the Court did not find any of
Rather, the Court made the novel finding that the “no duty” holding from
Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989),
applied to Mr. Kessler’s heckler’s veto claims. (JA 404) The Court also examined
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The entire Heaphy report was attached to Appellant’s Complaint (JA 121-340; DE 7-1)
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Though Mr. Kessler argued for strict scrutiny in this section, the Court opted for
intermediate scrutiny. (JA 411.) The Court also touched very briefly on qualified
Appellees to cancel a free speech protected event due to the mere threat of counter
heckler’s veto claim; 2) the District Court erred in failing to apply strict scrutiny to
plaintiff’s “acquiesced in” claim and under strict or intermediate scrutiny the
Appellants protected speech and were also required to do something, rather than
absolutely nothing, to protect Mr. Kessler’s speech rights from being negatively
ARGUMENTS
A. Standard of Review
novo. Ray v. Roane 948 F.3d 222, 226 (4th Cir. 2020).
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To determine whether a right was clearly established, Courts in the Fourth Circuit
“ask whether, when the defendant violated the right, there existed either controlling
persuasive authority," Booker v. S.C. Dept of Corr., 855 F.3d 533, 544 (4th Cir. 2017)
“that would have given the defendants "fair warning that their conduct was
wrongful." Williamson v. Stirling, 912 F.3d 154, 187 (4th Cir. 2018).” Turner v.
In Bible Believers v. Wayne Cnty., 805 F.3d 228, 236 (6th Cir. 2015) the Sixth
Circuit engaged in an extended discussion of the heckler’s veto doctrine. The Sixth
Circuit held: “The [protestors] attended the Festival to exercise their First Amendment
rights and spread their religious message. The way they conveyed their message may
have been vile and offensive to most every person…….; nonetheless, they had every
right to espouse their views. See Cantwell, 310 U.S. at 309, 60 S.Ct. 900. When the
message was ill-received, the police did next to nothing to protect the [protestors] or to
contain the lawlessness …….in the crowd… ......... On this record, there can be no
reasonable dispute that the [police] effectuated a heckler's veto, thereby violating the
In making this holding the Sixth Circuit relied on numerous U.S. Supreme Court
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South Carolina, 372 U.S. 229, 238 (quoting Terminiello v. City of Chicago, 337 U.S. 1,
lawless crowd that is offended by what the speaker has to say. Bible Believers 805 F.3d
228, 250. “[T]he espousal of views that are disagreeable to the majority of listeners may
The Sixth Circuit is not alone in it’s interpretation of the heckler’s veto. The Third
Circuit has explained “"If there is a bedrock principle underlying the First Amendment,
it is that the government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397,
414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); see also Boos v. Barry, 485 U.S. 312,
322, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) ("[I]n public debate our own citizens must
tolerate insulting, and even outrageous, speech in order to provide adequate breathing
533 F.3d 183, 200 (3d Cir. 2008). “[W]e agree with appellants that the heckler's veto
analysis is not so limited (to an anticipated hostile reaction) but may apply to situations
where police restrict speech that is taking place” Id. quoting Frye v. Kansas City Police
The Seventh Circuit has explained that “ the Supreme Court held in Terminiello v.
City of Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), and the holding
has been repeated countless times, see, e.g., Cox v. Louisiana, 379 U.S. 536, 551-52, 85
S.Ct. 453, 13 L.Ed.2d 471 (1965); Collin v. Smith, 578 F.2d 1197, 1206 (7th Cir.
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1978); PeTA, People for the Ethical Treatment of Animals v. Rasmussen, 298 F.3d 1198,
1206-07 (10th Cir. 2002); see also Reno v. American Civil Liberties Union, 521 U.S.
844, 880, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), that a permit for a parade or other
assembly having political overtones cannot be denied because the applicant's audience
veto." Church of the American Knights v. City of Gary 334 F.3d 676, 680 (7th Cir.
2003.)
The Fourth Circuit, far from calling any of the above into question, substantially
agrees with all of it. In the Fourth Circuit, Berger v. Battaglia 779 F.2d 992, 1001 (4th
Cir. 1985) commands "Nevertheless, however real the dilemma [ of public violence], we
think and hold that the [police] Department" must enforce the First Amendment.” Berger
at 1001. In the Fourth Circuit the only choice "wholly consistent with the First
Amendment" is to protect the speaker's rights as against a heckler's veto. Berger at 1001-
1002.
“Historically, one of the most persistent and insidious threats to first amendment
rights has been that posed by the `heckler's veto,' imposed by the successful importuning
order. Berger v. Battaglia, 779 F.2d 992, 1001 (4th Cir. 1985). Courts have recognized a
sixty years. See Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed.
1131 (1949). Repeatedly, courts have emphasized the state's responsibility to permit
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unpopular or controversial speech in the midst of a hostile crowd reaction. See, e.g.,
Ovadal, 416 F.3d at 537; Smith v. Ross, 482 F.2d 33, 37 (6th Cir. 1973); Grider v.
Abramson, 994 F.Supp. 840, 845-16 (W.D.Ky. 1998). In the abstract, at least, the
jurisprudence.” Rock for Life-Umbc v. Hrabowski 411 F. App'x 541, 554 (4th Cir. 2010).
First Amendment right he is asserting in this litigation was “clearly established” in this
Circuit on August 12, 2017. Accordingly, the trial Court erred in finding appellees were
A. Standard of Review.
novo.” Weidman v. Exxon Mobil Corp. 776 F.3d 214, 219 (4th Cir. 2015.) In
reviewing a motion to dismiss for failure to state a claim, we must "accept as true
all of the factual allegations contained in the complaint and draw all reasonable
inferences in favor of the plaintiff." A complaint need only "give the defendant
fair notice of what the ... claim is and the grounds upon which it rests." Tobey v.
Jones , 706 F.3d 379, 387 (4th Cir. 2013) (quoting Bell Atl. Corp. v. Twombly , 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A Rule 12(b)(6) motion
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to dismiss ‘does not resolve contests surrounding facts, the merits of a claim,
but simply a vehicle for vindicating preexisting constitutional and statutory rights.
The first step in any such claim is to pinpoint the specific right that has been
infringed.” Safar v. Tingle 859 F.3d 241, 245 (4th Cir. 2017.)
against [unreasonable seizures and arrests]," Id. Here, the First Amendment
provides “an explicit textual source” of protection for Mr. Kessler’s First
Amendment rights. The Trial Court did not fail to note that fact in it’s Opinion. (JA
411 at footnotes.)
Importantly, none of the four cases relied on by the District Court in making
it’s DeShaney holding come anywhere near applying DeShaney to a heckler’s veto
or any other First Amendment claim. The District Court cited to Musso v.
Hourigan, 836 F.2d. 736 (2d Cir.1988); ;Doyle v. Town of Scarborough, 2016 WL
4764902, (D. Maine Sept. 13, 2016); Morlock v. West Cent. Educ. Dist., 46 F.
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Not a single one of these cases applies DeShaney to a First Amendment case.
In Musso the Court held that one city councilman had no duty to prevent another
city councilman from violating the First Amendment right of a speaker at public
council meetings. The Musso Court allowed claims to proceed against government
officials who actually violated the Plaintiff’s rights as well as other councilmen to
the extent they participated in the violation. Musso did not hold there was no duty
regarding its plaintiff’s alleged rights, nor did it deal in any way with heckler’s
veto or DeShaney.
In Doyle the Court held that city councilors had no duty regarding a
plaintiff’s First Amendment rights where they had no supervisory authority over
other councilors but were liable for their own misconduct. The Doyle Court did not
Morlock was a student speech case. The Morlock Court was unimpressed
with its plaintiff’s argument that her speech had been chilled since the school
“tolerated sexual harassment” and she was consequently less willing or unwilling
to report said harassment. Once again, there is zero discussion of heckler’s veto
Lastly, the District Court and Appellees each cited to the Fourth Circuit case
of Turner v. Thomas 930 F. 3d 640 (4th Cir. 2019.) The Turner plaintiff seems to
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the violence, or made it worse, and this caused the personal injury to the Turner
and therefore the Court properly applied DeShaney analysis. As above, there was
Accordingly, there is no case law support whatsoever for the District Court’s
above, mandatory precedent in this Circuit requires that the District Court not
apply “the more generalized” law of DeShaney to this First Amendment case.
A. Standard of Review.
“[W]e review a grant of a motion to dismiss for failure to state a claim de
novo.” Weidman v. Exxon Mobil Corp. 776 F.3d 214, 219 (4th Cir. 2015.)
B. Discussion
The District Court acknowledged that Appellees had a duty not to participate
or acquiesce in a heckler’s veto of Mr. Kessler’s protected speech. (JA 409, 411).
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It is the contents of the Heaphy Report that adds necessary detail to the
allegedly conclusory allegation cited by the Court. (JA 410.) The Heaphy Report
was attached as an exhibit to Appellant’s Complaint and the the Court itself held
the report to be integral to the Complaint. (JA 394.) Thus, that reports contents
officials were opposed to the content of Appellant’s speech. (JA 134, 140, 156,
*31 (W.D. Va. Nov. 18, 2016; Moon, J.) citing Forsyth Cty., Ga. v. Nationalist
Movement, 505 U.S. 123, 134 (1992). Indeed, if Appellant’s Complaint says
anything, it says that “Antifa” was going to show up and punch Nazis on August
12, 2017 in Charlottesville. (JA 10-118.) Accordingly, the District Court must be
The proper scrutiny level notwithstanding, the Court did apply intermediate
scrutiny. (JA 411.) “Under intermediate scrutiny, the State bears the burden of
proving that the law is "narrowly tailored to serve a significant government interest
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Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th Cir. 2013.) The
means chosen must not be substantially broader than necessary to achieve the
government's interest. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989.)
evidence supporting [their] assertion that [the] speech restriction[s] [do] not burden
substantially more speech than necessary." Reynolds v. Middleton, 779 F.3d 222,
Appellees must "prove that [the government] actually tried other methods to
must show [] that it seriously undertook to address the problem with less intrusive
tools readily available to it, and must demonstrate that [such] alternative measures
. . . would fail to achieve the government's interests, not simply that the chosen
Neither the District Court Opinion nor the Appellees have shown how
Appellee’s alleged actions comply with the above legal standard. Not unless
Appellees’s police officers telling Mr. Kessler he is not allowed to speak and must
leave with everyone else (JA 21) constitutes an ample alternative channel of
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“let them fight, it will make it easier to declare an unlawful assembly” (JA
C. Remaining Claims
The District Court dismissed Mr. Kessler’s Monell and supervisory liability
claims in quick fashion (JA 22-23) as it found they must be dismissed due to the
finding that no constitutional violation had been successfully pled or that qualified
immunity applied. Appellant concurs that if this Court sustains the trial Court then
the Monell and supervisory liability claims also fail. However, as shown above the
District Court must be reversed and, if so, then it must be reversed as to the Monell
CONCLUSION
For the reasons stated above, Mr. Kessler respectfully requests that this
Court reverse the District Court as to all claims and remand this matter so that
Appellant can begin litigating his case. In the alternative, Mr. Kessler requests that this
Court reverse the District Court and remand this matter so that that Court can
reexamine the motion to dismiss issues in the light of the correct legal standard, to wit:
that DeShaney does not apply to heckler’s veto claims, that Mr. Kessler’s alleged rights
were clearly established in this Circuit on August 12, 2017, that strict scrutiny should
or at least that the correct intermediate scrutiny standard should be used to examine the
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CERTIFICATE OF COMPLIANCE
1. This brief complies with type-volume limits because, excluding the parts of
the document exempted by Fed. R. App. P. 32(f) (cover page, disclosure
statement, table of contents, table of citations, statement regarding oral
argument, signature block, certificates of counsel, addendum, attachments):
[ ] this brief uses a monospaced type and contains [state the number of]
lines of text.
2. This brief complies with the typeface and type style requirements because:
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CERTIFICATE OF FILING AND SERVICE
I hereby certify that on this 2nd day of March, 2021, I caused this Brief of Appellant
and Joint Appendix to be filed electronically with the Clerk of the Court using the CM/
ECF System, which will send notice of such filing to the following registered CM/ECF
users:
Rosalie Fessier
Direct: 540-885-1517
Email: [email protected]
TIMBERLAKE SMITH
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25 North Central Avenue
P. O. Box 108
Staunton, VA 24402-0108
Counsel for Appellee Maurice Jones
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