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

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.