4th Circuit Shoots Down ‘Unite The Right’ Protester’s Attempt To Turn The Consequences Of His Own Actions Into A Constitutional Violation – Above the Law

When
the
government
shuts
down
a
protest
because
both
protesters
and
counter-protesters
are
physically
attacking
each
other,
it’s
not
a
“heckler’s
veto.”
It’s
just
common
sense,
even
though
there
was
very
little
of
that
on
display
during
the
protest,
nor
during
law
enforcement’s
belated
response
to
the
violent
confrontation.

But
Warren
Balogh
thinks
only his rights
were violated
during
this
protest
in
Charlottesville,
Virginia.
He
should
have
known
better.
After
all,
the
organizer
of
the
“Unite
the
Right”
protest,
Jason
Kessler,
already
tried
pursuing
this
novel
theory
in
court
after
cops
dispersed
everyone
in
attendance
—
protesters
and
counter-protesters
—
after
it
devolved
into
a
steady
series
of
physical
altercations
between
attendees.
And
he
lost.

The
same
goes
for
Balogh,
who
chose
to
represent
himself
in
this
civil
rights
lawsuit
—
one
that
claims
his
First
Amendment
rights
were
violated
when
the
Charlottesville
PD
ordered everyone to
disperse
following
several
violent
confrontations
(and
the
killing
of
a
counter-protester
by
a
white
nationalist
who
deliberately
drove
his
car
into
a
crowd).

The
Fourth
Circuit
doesn’t
see
anything
its
likes
in
Balogh’s
arguments,
which
mirror
Kessler’s
failed
attempt
to
claim
his
rights
were
violated
in
the
same
way
at
the
same
protest.
Here’s
the
only
place
Balogh
succeeds
where
Kessler
failed:
he
managed
to
secure
precedent
that
works
against
him.
From
the
opening
of
the
Fourth
Circuit
Appeals
Court decision [PDF]:

This
appeal
asks
a
straightforward
legal
question:
does
the
First
Amendment
protect
speech
amid
violence?
More
specifically,
does
the
First
Amendment
obligate
police
officers
to
protect
the
constitutional
rights
of
protesters
amid
violence?
We’ve
already
suggested
that
the
answer
is
no.
Kessler
v.
City
of
Charlottesville,
No.
20-1704,
2022
WL
17985704,
at
*1
(4th
Cir.
Dec.
29,
2022)
(per
curiam).
We
say
so
explicitly
today.

When
the
government
decides
it’s
not
going
to
target
anyone’s
speech
but
just
allow
citizens
to
(in
this
case, literally)
fight
it
out
until
it
can’t
ignore
the
violence
any
longer,
it’s
not
suppressing
speech.
It’s
suppressing
violence.
And
the
Fourth
isn’t
willing
to
pretend
the
ultimate
outcome
of
this
clash
between
far-right
extremists
and
Antifa
(which,
as
far-right
activists know but
will
never acknowledge,
refers
to
a
loose
association
of
people
with
an anti-fascist agenda)
violated
Balogh’s
rights,
no
matter
how
creative
his
legal
sales
pitch.

The
rally
erupted
into
violence
between
protesters
(including
Balogh)
and
counterprotesters,
effectively
cutting
off
everyone’s
speech
and
ultimately
leading
to
multiple
injuries,
widespread
property
damage,
and
one
death.
Despite
the
mayhem,
law
enforcement
followed
Chief
Thomas’s
directive
not
to
intervene
and
did
little
to
interrupt
the
participants’
“mutual
combat.”

Balogh
would
have
us
seize
on
these
facts
to
transform
the
First
Amendment
from
a
shield
to
guard
against
invasive
speech
regulations
into
a
sword
to
wield
against
violent
speech
disruptions.
We
decline
to
forge
such
a
weapon,
and
instead
affirm
the
district
court’s
judgment
dismissing
the
complaint.

Balogh
hoped
to
salvage
his
(nonexistent)
First
Amendment
case
by
dragging
along
the
Fourteenth
Amendment
for
the
ride.
But
the
Fourteenth
Amendment
deals
with
due
process
violations,
not
speech
suppression
or
even
retaliatory
arrests
prompted
by
an
individual’s
speech.
The
Fourteenth
has
nothing
to
do
with
this
at
all…
ever,
as
the
court
explains:

Neither
we
nor,
seemingly,
any
other
court
has
ever
applied
this
Fourteenth
Amendment
exception
to
a
First
Amendment
claim.
Moreover,
and
as
the
district
court
explained
in
Kessler,
“the
First
Amendment
merely
guarantees
that
the
state
will
not
suppress
one’s
speech
.
.
.
[,]
[i]t
does
not
guarantee
that
the
state
will
protect
individuals
when
private
parties
seek
to
suppress
it.”

Then
it
goes
after
the
heart
of
Balogh’s
comparatively
better-formed
First
Amendment
arguments,
leading
off
with
a
sentence
I
wished I’d written:

Balogh’s
second
argument
invoking
the
heckler’s
veto
has
more
legs,
but
ultimately,
none
to
stand
on.

Balogh
cites
a case
covered
here
at
Techdirt in
hopes
of
talking
the
Fourth
Circuit
into
siding
with
him.
That
case
— Meinecke
v.
City
of
Seattle —
dealt
with
a
self-proclaimed
“street
preacher”
who
read
Bible
passages
while
attending
abortion
rallies
and
an
LGBTQ
pride
festival.
Attendees
of
these
events
verbally
and
physically
attacked
Matthew
Meinecke
in
response
to
his
Bible
reading.
Officers
policing
these
events
decided
to
shut
down
Meinecke’s
speech
—
first
by
ordering
him
to
leave
and
then
by
arresting
him
when
he
refused
to
do
so”
—
seemingly
because
they
thought
it
would
be
easier
to
silence
the
speech
than
handle
the
violence
directed
towards
Meinecke.
In
that
case,
the
government
sided
with
hecklers
and
allowed
its
veto
to
silence
Meinecke’s
speech.

But
that’s
not
what
happened
here.
In
this
case,
both
sets
of
protesters
violently
clashed
with each
other.
And
when
the
PD
finally
got
permission
to
do
something
by
the
chief,
the
entire
thing
was
shut
down,
with
both
protesters
and
counter-protesters
being
removed
from
the
scene.
And
even
Balogh
admitted
the
“Unite
the
Right”
group
fully
expected
to
be
confronted
by
Antifa
counter-protesters
and
told
members
to
fight
back,
which
Balogh
himself
did.

And
that’s
why
Balogh
is
on
the
receiving
end
of
a
second
consecutive
ruling
against
him:
the
First
Amendment
doesn’t
protect
speakers
from
hostile
reactions from
other
citizens to
their
speech.
And
it
especially
doesn’t
protect
them
when
the
speakers
abandon
speaking
and
engage
in
violence
instead,
prompting
government
action
in
response
to
the violence,
rather
than
the
speech.

The
right
to
protest
is
a
core
First
Amendment
guarantee.
Nothing
about
our
decision
today
changes
that.
Rather,
we
reiterate
that
the
First
Amendment
protects
peaceful
protesters
from
a
state
seeking
to
suppress
their
speech.

But
this
isn’t
a
case
where
state
actors
silenced
Balogh’s
voice
while
permitting
lawlessness
from
a
hostile
public.
Nor
is
it
a
case
where
that
hostile
public
received
preferential
treatment
from
the
state.
Instead,
the
state
treated
all
speakers
equally
in
disbanding
a
violent
protest.

This
should
be
the
end
of
this.
Balogh,
though,
is
representing
himself,
so
it’s
clear
he
doesn’t
mind
spending
his
time
engaging
in
lost
causes.
But
even
if
he
decides
he
is
going
to
take
this
to
the
top
court
in
the
land,
there’s
almost
zero
chance
the
top
court
is
going
to
waste its time
engaging
with
this
garbage
litigation.
Balogh
went
looking
for
a
fight
and
got
it.
But
then
he
wanted
more.
He
wanted
the
government
to
pay
him
for
breaking
up
the
fight
he
provoked.
That’s
how
entitlement
works,
folks.
White
boys
with
chips
on
their
shoulders
think
the
world
owes
them
a
living
even
as
they
seek
to
deprive
others
of
the
things
that
actually
make
life
worth
living.

(Opinion
on
next
page…)

4th
Circuit
Shoots
Down
‘Unite
The
Right’
Protester’s
Attempt
To
Turn
The
Consequences
Of
His
Own
Actions
Into
A
Constitutional
Violation

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4th Circuit Shoots Down ‘Unite The Right’ Protester’s Attempt To Turn The Consequences Of His Own Actions Into A Constitutional Violation – Above the Law