Somewhat to my surprise, the Charlottesville Daily Progress has just printed my letter criticizing the effort of a UVa law professor and her students to have some of the torch-bearing alt-right protestors in Charlottesville last summer prosecuted.
The letter is here, but overly zealous editing (is there any other kind?) removed a couple of paragraphs that I continue to think important. They are included in the following text, which is what was originally submitted:
To The Editor:
Attempting to combat political protesters — even foul-mouthed, repugnant ones — with criminal sanctions is a terrible idea.
UVa law professor Anne Coughlin and some students are attempting to do just that (Daily Progress news story, April 27).They assert that the tiki-torch carrying protesters on the night of August 11 violated Virginia Code § 18.2-423.01, which states that “Any person who, with the intent of intimidating any person or group of persons, burns an object on the private property of another without permission, is guilty of a Class 6 felony.”
Not the least of the problems with this attempt to criminalize political protest is proving intent. I don’t know any of the August 11 protesters, but from what I’ve read it seems to me that their intent was less to intimidate than to provoke the violent response that in fact occurred.
The fact that the counter-protesting antifa demonstrators who appeared in Charlottesville and elsewhere often wear masks to hide their identity raises another problem. The statute that Prof. Coughlin cites originated in old attempts to combat the Ku Klux Klan. A similar statute that she does not cite, § 18.2-422, makes it unlawful for any person “to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth.” So far as I know Prof. Coughlin is not pressing for criminal sanctions against mask-wearing antifa protesters.
And then there’s the question of whether 400 candles can be as intimidating as a smaller number of tiki-torches. Charlottesville has witnessed many “candlelight vigils.” In fact, Prof. Coughlin spoke at one (Daily Progress news story, March 13, 2003) at which, the Cavalier Daily reported, “Four hundred individual candles shone their light on the north side of the Rotunda last night as students, faculty members and local residents gathered to show their condemnation of the recent attack on Student Council President-elect Daisy Lundy and their support for progressive action in race relations at the University.”
Might those at the time (and later) who thought the reported attack on Daily Lundy was a hoax and others who did not support the “progressive action in race relations” demanded by the vigilers have been intimidated by that show of candlepower?
We all might be sure that there is a world of difference between tiki-torch carrying Klan-sympathizing protesters and candlelight vigilers, but are we equally sure that we should trust prosecutors now and in the future to share our certainty?