Willful ignorance of context, the Nazis, and the ACLU

Ben Klemens
8 min readAug 16, 2017


Chicago, 1979

You’ve already read a lot about Charlottesville in the press, but you may not have followed the back story very closely, or may not have read the briefs in the core legal proceedings. Those parts are revealing, and provide a bit of insight into the event, the handling of it by the Virginia chapter of the American Civil Liberties Union (ACLU-VA), and the question of how to weigh the violence on both sides.

The city of C’ville made errors, which you can read about in the briefs and the ruling linked below, and you can make your own judgments about whether they are serious indications of intent or bureaucrats messing up bureaucracy. But this is an essay about a few selected points in the briefs that I believe add up to a story.

Before the rally, the City of C’ville modified the permit for the Alt-right (herein: Nazi) rally to move it to a larger park outside the city center. I’ve seen people state or imply that the city outright revoked the permit or tried to shut down the rally, but that’s inaccurate.

Here’s ACLU-VA’s memo to the court, the city’s memo defending the move,
and the judge’s ruling.

The rationale was that permit for the Nazi rally was for 400 people, but then it got big. Here is how the city describes the original park: “Emancipation Park (formerly known as “Lee Park”) is located one block from the City of Charlottesville’s historic Downtown Mall, and is approximately one square block in size and shape.” The alternative park, McIntire park, is outside of downtown and has often hosted more halcyon large-scale events.

If you want to see for yourself, here’s a map centered on Emancipation Park (or as Google calls it, Lee Park); McIntire is to the North.

The rally organizers, with the ACLU of Virginia, sued to keep the rally at its original location: an injunction on the city’s order that the rally be moved. The claim was that the rationale for the Nazi rally was about the removal of a statue of a Confederate Army general, so the rally had to be next to that statue.

Some people I’ve read have said or implied this was a simple free speech issue where the city tried to shut down the rally. Glen Greenwald put out a very long essay about the ACLU’s many free-speech cases, like a current one about ads on subways, and inserted a few paragraphs about the C’ville incident as part of the ACLU’s free speech history.

But the city’s filing indicated that the central concern was headcount. From a court filing, here’s what the C’ville Police Department counted, which is worth printing if only for the amusing group names:

4. Specifically, the CPD Criminal Investigations Division has spoken with Rally planners and participants, as well as individuals from several organizations likely to participate, including, for example:

a. Mr. Micahel Peinovich, an individual schedule to speak at the Rally at the invitation of Mr. Kessler, indicated that the event may draw 1,000 people.

b. Scheduled Rally speaker Mr. Augustus Invictus, indicated the expected attendance of 150 security personnel from the Alt Knights and The American Guard.

c. Scheduled Rally Speaker Mr John Ramondetta, indicated that he had heard discussion of the attendance of 200 people from Texas, a separate contingent from Florida, and an additional 40 people from California.

d. Chief Vetting Officer and Official Spokesperson of the Fraternal Order of Alt-Knights (“FOAK”) Trace Chiles indicated that he expects 200 (with a minimum of 150) FOAK members and 75–100 “Patriot Men” to attend, and further projected that a total of 1000 people would attend in support of the Rally.

e. Imperial Wizard of the Rebel Brigade of Knights for the KKK Bill Snuffer stated that [an] estimated 250–500 members of four different groups of the KKK will be attending from the states of Delaware, Florida, and Virginia.

f. Imperial Wizard of the Confederate Knights of the Klan Richard Preston estimated that 500 individuals from a group known as “3% Risen” would attend.

g. New York State Commander of the Lightfoot Militia George Curbelo estimated that due to the popularity of the event there could be at least 200–300 individuals from his group in attendance.

Some of these may overlap, some are hearsay, but just taking (f)+(g) we have at least 700, and we haven’t even gotten to the spectators not aligned with a specific group or even the organizers themselves. Note also that the CPD is getting these estimates mostly from organizers of the event itself.

The brief also discussed the need for room for emergency personnel to have their staging area and to maneuver through the crowd if needed. The Fire Chief pointed out that the park is inappropriate for such a big crowd, and adjacent downtown streets would have to be closed to handle the crowd, making it difficult for emergency services both for the event and the usual 911 calls a city gets in a day. The chief of police and City Engineer expressed concerns.

Here’s the response, in the brief filed by the main rally organizer (Mr. Kessler) and the ACLU-VA: “Defendants’ alleged reason for revoking Plaintiff’s permit was information from an unspecified source concerning the number of people likely to attend the demonstration including supporters and opponents.” “In revoking the permit, the City cited ‘safety concerns’ associated with the number of people expected to attend Plaintiffs rally but cited no source for those concerns.”

Judge Conrad agreed. From the ruling, the Judge stated: “In revoking the permit, the defendants cited ‘safety concerns’ associated with the number of people expected to attend Kessler’s rally. However, the defendants cited no source for those concerns.” Judge Conrad also seemed to be of the opinion that things would be violent anywhere — moving it out from downtown streets and properties a block from the historic Downtown Mall wouldn’t make any difference to safety.

I agree with the ACLU-VA, and the pundits who commented on the matter after the fact, that the move out of downtown was a free speech issue. Venue is important. The problem to me is not that the ACLU-VA wrote a brief defending Nazis, but that they wrote a brief that brushed off safety concerns, claiming that they were from “unspecified sources,” though they were from the Fire Chief and the organizers of the rally itself. One could easily imagine BS safety concerns, like if the rejection of venue were entirely about resident parking complaints, but to think that the safety concerns of the burgeoning C’ville Nazi rally were a mere excuse requires a willful ignorance of context.


In retrospect, we know it was a violent event, but in foresight, everybody knew it would be a violent event too. Nobody prepares for a picnic in the park with rifles, shields, helmets and riot gear, as many white supremacists did. And it’s true that many protesters came with weapons and were clearly willing to engage in violence against Nazis — but then, this describes the entire US Army during World War II.

A lot of the discussion about the event is about the narrative of both sides are responsible versus these Nazis showed up with violent intent. From that perspective it’s noteworthy that the city brief is entirely about the size of the Nazi contingent and safety concerns (and, of course, parking). There are one or two peripheral mentions of counterprotesters, which certainly weren’t the focus, and the headcounts above were rally attendees only.

The line I pulled above from the ACLU-VA-signed brief already claims that the city was counting “opponents” in the headcount, and then goes on for several pages about the “heckler’s veto”. Representative line: “government officials may restrict expressive activity because of a threat of violence but only if they have a reasonable belief that violence is imminent by those whose expression they seek to restrict.” That is, if we expect counterprotestors to be violent but the Nazis to be peaceful, it’s a First Amendment violation to move the event. I think this too is a reasonable position.

Subsequent paragraphs in the ACLU-VA-signed brief are about how the Nazis promise that they will be peaceful. Mr. Kessler “is on record as saying that he ‘absolutely intends to have a peaceful rally’ and that his group would ‘avoid violence.’” To take this statement at face value is, once again, a willful ignorance of context. The brief continues, the city “must show that its decision to revoke and modify Plaintiff’s permit was based solely on a reasonable belief that the plans and actions of the ‘Unite the Right’ organizers, not of those who plan to be present in opposition, presented an imminent threat.”

The equation in this brief signed by the ACLU-VA, then, is that (expectations of violence from one side or the other) + (Nazis pinky-swearing that they will be peaceful) = (city expectations must be about violent counterprotesters). This is also the position espoused by one or two well-placed political figures, who take at face value that the people who showed up with KKK and Nazi insignias so closely related to lynchings and genocides, the people who showed up with guns and armor, were just there for a picnic in the park until the liberal kids showed up with sticks.

It wasn’t just the lawyers and the courts, by the way. Go back to that Greenwald essay and search the page for ‘safety’, ‘crowds’, or ‘permit’ and you won’t find them: to him, it’s a pure free speech issue. He included a personal story, which may be of especial interest: “One board member of the ACLU of Virginia, Waldo Jaquith, waited until the violence erupted to announce on Twitter that he was resigning in protest of the ACLU’s representation of the protesters — as though he was unaware when he joined the board that the ACLU has been representing the free speech rights of neo-Nazis…” Mr Greenwald linked to this tweet —

— but didn’t link to this earlier tweet —

If you click on the date stamp, you can follow the personal story through, about how Mr Jaquith was concerned that “these Nazis’ goal was violence, not free speech”, how “Our attorney prepared a legal case to stop what was clearly going to be a bloodbath, to convince the city to shut it down.” At the ACLU-VA, “I recused myself from the decision, after telling them that this was a dangerous situation…” His opinion regarding Nazis is not hidden, but his narrative was about safety — and he was right: it was a bloodbath, and having it right by the Downtown Mall was a fatal mistake. But none of this showed up in the Greenwald essay on the ACLU, because that essay was about free speech, not public safety.

Greenwald, the ACLU-VA who chose to advocate for this case over competing requests, Judge Conrad, and the Nazis all wanted this to be a purely first amendment issue, which required a willful ignorance of context to make that happen.

My primary intent here was to go over the legal briefs nobody reads, but the moral is that going along with willful ignorance of context can be disastrous. Context is hard: there’s a lot of it and always something we didn’t see. But there’s a substantive difference between trying but only getting part of it, and going out of the way to ignore it. If somebody comes out with a swastika on his or her arm and says ‘I come in peace’, use and act on context clues. If somebody insists that he is a reasonable person and it’s entirely reasonable to publicly claim that certain coworkers are inferior, based on entirely reasonable plots with no axes and citations to reasonable sources like the New Yorker and Wikipedia, consider both the context of a workplace and the context of where the document’s ideas came from. It’s easy for somebody to contextlessly say I’m merely asking questions, or my intent is purely peaceful, or my position is perfectly symmetric to yours, and the responsibility is on the listener to insist on putting such statements into context.



Ben Klemens

BK served as director of the FSF’s End Software Patents campaign, and is the lead author of Apophenia (http://apophenia.info), a statistics library.