Update, 6:30 p.m. Wednesday, Aug. 15:
The National Park service is soliciting opinions on a right-wing group’s planned rally on federal land in San Francisco later this month, according to a statement Wednesday evening from the Golden Gate National Recreation Area’s acting superintendent.
The possibility that federal officials would allow the group Patriot Prayer to host a rally likely to draw armed militias and white nationalist groups alarmed San Francisco city leaders — as well as state and national representatives — in the wake of a deadly attack Saturday in Charlottesville, Virginia.
Mayor Ed Lee sent a letter to Golden Gate National Recreation Area Acting Director Cicely Muldoon on Tuesday criticizing what he believed to be the National Park Service’s decision to permit the rally.
Muldoon said in a statement Wednesday that a final determination on the permit would be made by the end of next week, one day before the planned Aug. 26 rally.
“Golden Gate National Recreation Area and the U.S. Park Police are closely coordinating with other federal, state and local agencies to ensure a robust plan is in place before we issue a final permit,” Muldoon’s statement says.
The statement appears to indicate what some legal experts said about the event: Denying or revoking the permit might be illegal.
“Our highest priority is to ensure public safety, while honoring our obligation to uphold one of our nation’s most cherished Constitutional rights, the First Amendment right to freedom of speech,” Muldoon’s statement says. “We are guided by the Constitution, the law, longstanding court precedent, and National Park Service policy, which tells us we must be deliberative and not preemptive in our decisions related to First Amendment gatherings.”
But one usual champion of even disturbing or repugnant demonstrations of free speech said in a statement Wednesday that “white supremacist violence is not free speech.”
Three branches of the American Civil Liberties Union, constituting the national civil rights organization’s representation in California, condemned some common tactics of white nationalist and white supremacist groups masked in the guise of “free speech.”
“[T]he ACLU of California fully supports the freedom of speech and expression, as well as the freedom to peacefully assemble,” the statement from directors ACLU’s Northern California, Southern California and San Diego chapters says. “If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution. The First Amendment should never be used as a shield or sword to justify violence.”
The ACLU of California is reviewing requests for help “on a case-by-case basis, but take the clear position that the First Amendment does not protect people who incite or engage in violence.”
The National Park Service directs “anyone interested in expressing their opinion” to send an email to email@example.com.
Original Post, Tuesday, Aug. 14:
San Francisco city officials are united in their opposition to a right-wing rally planned on federal land near the Golden Gate Bridge later this month, and they’re hurling criticism at the National Park Service for reportedly issuing a permit to the event’s organizers.
Portland-based “Patriot Prayer,” which is promoting an Aug. 26 “Freedom Rally” at Crissy Field, says it’s not a white supremacist or white nationalist organization. But the group has often rallied with militias and unequivocal white nationalists at other events around the country.
“We are not welcoming this group into San Francisco to promote hate,” Mayor Ed Lee said at a press conference Tuesday announcing the city’s opposition to the rally. “We think that the National Park Service, without adequate evaluation and conditions, would do just that and would then, I think, increase opportunities for violence in our city and on the shores of federal property.”
House Democratic Leader Nancy Pelosi and San Francisco representatives in the state Legislature on Tuesday also announced their opposition to the rally.
The National Park Service, which oversees the Golden Gate National Recreation Area that includes Crissy Field, did not respond to request for comment. It’s unclear whether the service was aware of a letter Lee and other city leaders sent Tuesday afternoon that says San Francisco officials are “outraged with the Golden Gate National Recreation Area’s (GGNRA) decision to grant an event permit to Patriot Prayer on August 26 without proper planning and resources, given the public safety concerns.”
“To say that we are outraged is an understatement,” Board of Supervisors President London Breed said. “We will do everything that we can to stop you from being in San Francisco. We don’t want to see our city torn apart because of the hate and the violence that you continue to promote all over the country.”
Despite the strong rhetoric, opponents of the rally are likely on shaky legal ground, according to Eugene Volokh, a UCLA law professor specializing in First Amendment issues.
In places presumed to be public forums, like the park where Patriot Prayer plans to rally, the government can impose only “content-neutral restrictions, such as requiring some notice in advance so they can provide adequate protection,” Volokh said in an interview. “But those have to be content neutral. You can’t have one rule for Black Lives Matter protesters, one rule for animal rights protesters and another rule for white supremacist protesters.”
But though they’re stopping short of a legal threat at this point, San Francisco officials opposed to the rally are using the language of a legal argument. They’re saying Patriot Prayer and affiliated groups are likely to incite violence — and incitement is a well-established legal exception to the First Amendment’s guarantee of free speech.
“We are a city of tolerance. We do enjoy free speech, but I suggest to you there is a difference between free speech and hate speech with the intent of causing violence,” Lee said. “People are coming here to commit violence, not to have an academic dialogue, not to have a fire[side] chat on differences of opinion. They’re coming here to promote violence. They’re aiming their guns at our people, and we’re going to stop them.”
Law professor Volokh said it would likely be more difficult for the National Park Service to revoke a permit, rather than reject or impose conditions before it was issued.
“Generally speaking, once the government issues a permit and then cancels it, there’s a pretty strong inference that it’s canceling it because of the viewpoint of the speakers,” he said. “That is unconstitutional.”
San Francisco Police Chief William Scott said he is trying to coordinate a law enforcement response with the National Park Service. He said SFPD is unlikely to set up a perimeter and allow far-right and far-left protesters to brawl — an approach taken in other cities.
“Our message is clear: Violence will not be tolerated in any form,” Scott said. But he acknowledged that SFPD won’t be able to do anything about the event at Crissy Field unless the National Park Service asks the department for help — a process called “mutual aid.”
“This permit has been granted without the necessary contingencies to protect the safety of the public and with the expectation that the City and County of San Francisco will expend our resources to diffuse the situation,” the city’s letter to the National Park Service says. “Furthermore, the permit was granted without adequate time to prepare the multi-agency response that will be required.”
Lee used another legalism in describing the threat of the protest — this one from a 1919 U.S. Supreme Court ruling that helped to define when free speech edges too close to triggering harm and loses its protection.
“We believe that without these conditions it’ll be like yelling fire in a crowded theater, that people will be placed in danger, and we don’t want that to happen in our city,” Lee said. “Unless they [the National Park Service] are totally ignorant of the kinds of things that have happened recently across the country, and particularly in Charlottesville, then they’re playing with fire.”
Vinnee Tong and Tara Siler of KQED News contributed to this report.