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Groups Plan to File Lawsuits Against Charlottesville Over 'Unite the Right' Rally

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CHARLOTTESVILLE, Va. (WVIR) -

Two organizations that specialize in protecting civil liberties plan to take Charlottesville to court over relocating Saturday's planned Unite the Right rally. 

The American Civil Liberties Union (ACLU) of Virginia and Charlottesville-based Rutherford Institute issued a joint letter Tuesday, August 8, demanding that the city let white activist Jason Kessler hold his rally as-planned from noon to 5 p.m. at Emancipation Park on August 12.

Charlottesville officials announced Monday, August 7, that the city would only permit Kessler to hold his rally in support of the statue of Confederate General Robert E. Lee - which sits in Emancipation Park - at McIntire Park.

The city argues that it wants to move the rally for safety and logistical reasons, as authorities estimate thousands of supporters and protesters may crowd the area. Kessler is so far refusing to change the venue.

In their joint letter, the two organizations raised concerns over how Charlottesville's actions may impact Kessler's First Amendment rights.

Both groups had given the city until noon Wednesday, August 9, to respond to their demands.

The Charlottesville Office of the City Attorney sent a letter to the ACLU and Rutherford Institute around 1 p.m. Wednesday. In it, City Attorney S. Craig Brown asks the organizations if they are representing Kessler:

While your letter makes a number of assertions that we would expect from Mr. Jason Kessler, the organizer of the rally, you do not indicate whether either of you are or are not representing him. Please let me know at your earliest opportunity whether you are, in fact, representing Mr. Kessler so that I will be able to fulfill my professional responsibilities pursuant to Rule 4.2 of the Virginia Rules of Professional Conduct.

According to the Virginia State Bar, Rule 4.2 is "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

The ACLU soon responded to Brown's letter with, "Mr. Kessler has become a client of the ACLU Foundation of Virginia and Mr. [John] Whitehead and his associate Doug McKusick have agreed to serve as co-counsel in the representation."

Rutherford Institute President John Whitehead said he and the ACLU are preparing to file a First Amendment complaint on Kessler's behalf in federal court either late Wednesday or on Thursday.

“Their [the city's] response to us, which I call a nonresponse today, basically says it's the expenses and stuff that were involved, etcetera, etcetera. But the key to the First Amendment is you have to have a compelling governmental interest to cancel a permit like public safety and they've not demonstrated any of that, and I don't think they can factually,” Whitehead said.

According to Whitehead, both the Rutherford Institute and the ACLU are representing Kessler free of charge. He also said they plan to push forward with this lawsuit, even if a court doesn't have time to take up the case before Saturday's rally.

Charlottesville has no comment at this time.

Editor's Note: This is a developing story, we are working to get more information and will bring you updates here on NBC29.com.

Letter from ACLU of Virginia Executive Director Claire Guthrie Gastañaga:

Thank you for your letter. We are disappointed in the response and appreciate your attention to the Rules of Professional Conduct. At the time that we wrote our original letter, we did so, as stated in the letter, as the executive directors of two civil rights organizations concerned about the important First Amendment concerns raised by the City’s actions regarding the permit for the planned August 12th demonstration in Emancipation Park.

Since that time and after we wrote to Council, Mr. Kessler has become a client of the ACLU Foundation of Virginia and Mr. Whitehead and his associate Doug McKusick have agreed to serve as co-counsel in the representation.

Right now our legal director, Leslie Mehta, who would normally be our lead counsel and the principal contact for us and our client, is on vacation. Until she returns (and we’ll let you know when that occurs), you may communicate directly with me (VSB #14067) on this matter.