Balogh v. Virginia, 2024 WL 4551724 (4th Cir. 2024)
The court’s opinion begins: “oes 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?” The opinion states an explicit, resounding “no.”
In Charlottesville, Virginia, the city council decided to remove a statue of Robert E. Lee from Emancipation Park (formerly Lee Park). The city issued a permit to hold a Unite the Right rally in the park to protest the proposal to remove the statue. The rally attracted counter-protesters, many of whom were affiliated with the extremist group Antifa. Local law enforcement received reports that the “Unite the Right supporters would bring bats, batons, flag sticks, knives, and firearms to confront their political opponents,” while counter protesters “would attempt to disrupt the event using soda cans filled with cement and balloons or water bottles filled with paint, urine, or fuel.”
Fearing violence, the city cancelled the rally permit. However, organizers sued, and a court ordered the protest could proceed. The planned police response was to declare the event unlawful if violence ensued and disperse the crowd. Various officers had differing understandings of what that meant. Some believed the plan called for a zero-tolerance response and others believed they were to stand back and not break up fights “unless it was something so serious that someone would get killed.”
Not unexpectedly, the rally spawned violence between protesters and counter-protesters. Both protesters and counter-protesters pleaded with officers to protect them. Consistent with their understanding of the plan, “the officers continued to stand in silence” until the chief declared an unlawful assembly. As police moved in, deploying pepper spray to disperse the crowd, Warren Balogh was allegedly assaulted. Balogh said a masked attacker hit him from behind with a stick after he left the park. In addition, he claimed officers were responsible for failing to enforce a prohibition on wearing masks, making him unable to identify his assailant.
Balogh sued the Charlottesville Police and the Virginia State Police for failing to protect his First and Fourteenth Amendment rights by not intervening in the violence and declaring an unlawful assembly before he was injured. The trial court dismissed Balogh’s complaint, ruling there was no clearly established right to police intervention to protect First Amendment rights from third-party violence. Balogh appealed.
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The appellate court held the First Amendment does not obligate police to protect protesters’ constitutional rights amid violence, explicitly stating the First Amendment is a “shield to guard against invasive speech regulations, not a sword to wield against violent disruptions.” The court also rejected the defense’s claim of state-created danger, “under which state actors may be liable for failing to protect injured parties from dangers which the state actors either created or enhanced,” finding it didn’t apply in this case. Finally, the court also held Balogh’s claim that the police had engaged in discriminatory enforcement of equal protection lacked sufficient evidence of intentional or purposeful discrimination.
“The right to protest is a core First Amendment guarantee,” the court said, but Balogh’s case wasn’t about that. It also wasn’t about some people being silenced while others were allowed to express their opinions. In the end, the opinion states, “the state treated all speakers equally in disbanding a violent protest.” Balogh was left with no leg to stand on, and the lower court’s judgment was affirmed.
