Tag: Josh Wheeler

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Muzzled: Free speech wall creator shuts down

The Thomas Jefferson Center for the Protection of Free Expression owns the Free Speech Wall on the Downtown Mall. Discussions with the city are going on to determine the wall’s fate. staff photo

During its heyday, the Thomas Jefferson Center for the Protection of Free Expression was known for calling out censorship with its Muzzle awards and for launching the Downtown Mall’s Free Speech Wall in 2006, where luminaries like John Grisham and Dahlia Lithwick turned out to chalk the first messages on the monument.

Over the past couple of years, the center seemed to have disappeared from the free speech landscape, and on July 1, UVA law school quietly buried news of the center’s death in a release for the relaunch of a First Amendment Clinic, funded in part from assets from the TJ Center.

Former Daily Progress owner Tom Worrell founded the center in 1989 with a reported $3.5 million gift and bestowed its unwieldy moniker. Worrell, who was on UVA’s Board of Visitors, offered the job of leading the new free speech institute to outgoing UVA president and constitutional law expert Bob O’Neil—who later said changing the name was nonnegotiable.

During O’Neil’s 21-year leadership, the center was involved in high-profile free speech cases. After televangelist Jerry Falwell sued Hustler publisher Larry Flynt—and lost—over a parody that contended Falwell had sex with his mother, O’Neil said he got the two men together and they became friends. The center also prepped Margie Phelps, a member of the notorious Westboro Baptist Church, which protested the funerals of soldiers with signs bearing messages like “God hates fags,” before her appearance in front of the U.S. Supreme Court.

The Muzzles came out every April 13, on Jefferson’s birthday, and highlighted a free speech hall of shame. Locals occasionally made the list, either as victims of censorship, like Aaron Tobey, who was arrested by TSA in Richmond for displaying the Fourth Amendment on his chest as he went through airport security, or perpetrators, like Albemarle High for seizing and destroying all copies of the school’s student newspaper in 2010. (Physical education teachers didn’t like an op-ed that suggested student athletes be able to opt out of P.E.)

Board chair Bruce Sanford says the center had been winding down for the past year and a half. When Worrell founded it in 1989, “its chief mission was First Amendment advocacy in court,” says Sanford, although finding those cases and defending them was more difficult than anticipated.

Robert O’Neil, who died last fall, led the Thomas Jefferson Center for the Protection of Free Expression for 21 years. photo Michael Bailey

O’Neil taught a First Amendment clinic at UVA, as did Wheeler. “The First Amendment clinics are doing a lot of good work,” and both Columbia and Yale have them, says Sanford. “We’re very pleased to refocus our assets”—over $1 million—to fund the UVA clinic.

Attorneys from the Reporters Committee for Freedom of the Press will teach a new generation of potential First Amendment lawyers, says Sanford. “It’s perfect for the original mission.”

As for why the center seemed to fizzle out, Sanford notes that the Muzzle recipients the past two years weren’t as compelling as in the past. And when O’Neil retired, “We didn’t have a leading constitutional scholar,” says Sanford. O’Neil died last fall at age 83.

Attorney Josh Wheeler succeeded O’Neil in 2011 and has been in private practice for the past two years. He did not respond to calls from C-VILLE.

The center’s shutdown leaves unresolved the fate of the Free Speech Wall, which has become the go-to site for protesters over its 13 years as a mall landmark.

When the city agreed to install the TJ Center-owned wall, it also agreed to not censor its content—although that did happen when a sexually explicit image was chalked on the wall in 2011. However, passersby are free to erase as they please, and the wall is cleaned twice a week to give citizens a blank slate.

“The cost of the upkeep is not great,” says Sanford, and the center is having discussions with the city about continuing the maintenance.

Longtime wall critic Kevin Cox says it’s an ineffectual monument to free speech, and it does not accomplish much as an educational tool. “It doesn’t really teach people what the First Amendment is” and how it applies to government, he says. Its location in front of City Hall creates the impression the government owns it.

He says the wall was a prescient “kind of a monument to Twitter” because it only accommodates short messages. Any lessons about free speech are “shallow,” he says. “It’s fun to write, ‘fuck City Council,’ but that’s about as far as it goes.”

Of the center’s closing, Cox says, “It seemed to be pretty superfluous. All they did was give their Muzzles.”

In fact, the TJ Center also filed a lot of briefs in First Amendment cases, according to Rutherford Institute founder John Whitehead. He calls O’Neil and Wheeler a “dynamic duo,” and says they would defend anyone’s free speech rights. “There’s never enough people doing First Amendment issues,” he says. “I hate to see them go.”

C-VILLE was unable to reach Worrell for his response to the shuttering of the free speech org he founded 30 years ago. He was active in the beginning, says Sanford, but moved to Florida and shifted his focus to other projects. Says Sanford, “He didn’t really stay engaged.”

Update: The original headline was “Muzzled: Free speech center shuts down.”

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Still guilty: Statue trespassers appeal their sentences, with mixed results

In March 2018, Brian Lambert (left) said he and Christopher Wayne (right) would take their punishment for trespassing and attempting to remove the tarps off the Lee and Jackson statues “like men.” Then they appealed, and all but one of their convictions were upheld. Photo by Eze Amos

The outspoken Confederates convicted for trying to remove the shrouds that once covered the Lee and Jackson statues downtown were back in court on appeal April 25–and one of them was back to his past courtroom antics.

Christopher Wayne, a 35-year-old from Monterey, was removed from the courtroom, handcuffed, and given an additional 10 days in jail for his bad behavior, which included hurling a pen across the room and screaming, “You can all go fuck yourselves.”

In March 2018, Wayne was found guilty of destruction of property and two counts of trespassing. Judge Joseph Serkes—whom Wayne repeatedly argued with—sentenced him to serve five months in jail, prompting the defendant to spew profanity outside the courtroom, and flash his middle finger at reporters.

During this go-round, in Charlottesville Circuit Court, Wayne continued to make offhanded comments to testifying witnesses, his own attorney, and prosecutor Nina Antony, who asked him to stop multiple times. Judge Rick Moore called it “entirely improper,” but refused to reprimand him in that moment.

“If he thinks he’s helping his case, I’m going to let him do it,” Moore said, noticeably annoyed.

Defense attorney Josh Wheeler, former director of the Thomas Jefferson Center for the Protection of Free Expression, called two of Wayne’s friends—one who said he met the defendant through “heritage events” and the other through the Virginia Flaggers—to the stand to dispute evidence from another witness, Hank Morrison, who claimed he saw Wayne tampering with the tarp in Market Street Park on February 16.

Morrison recounted seeing Wayne standing inside the orange fencing the city had erected around the Lee statue. He also said it sounded like someone was yanking on the tarp that shrouded Lee as the city mourned the August 12, 2017, death of Heather Heyer.

Wayne and one other person, identified as William Shifflett, began walking away when they noticed Morrison take out his cell phone to call the police, Morrison said. An officer responded almost immediately and stopped Wayne and Shifflett near the park.

But both Shifflett and Wayne’s other friend, Barry Isenhour, who said he drove the men downtown that day for “supper” on the Downtown Mall, testified that they never saw Wayne tamper with the tarp covering the statue.

Wheeler argued that the testimony from Shifflett and Isenhour was as credible as Morrison’s, and the judge agreed.

Moore upheld Wayne’s guilty verdict for trespassing that day, but dismissed the charge for destruction of property, saying the prosecutor didn’t prove without a reasonable doubt that he also tampered with the tarp that night. Though “chances are, he did it,” Moore said.

He also found Wayne guilty of trespassing in Court Square Park on February 23. Detective Declan Hickey testified that he saw Wayne hiding in the park’s bushes after 11pm, when the park is officially closed, which is marked on signs at its entry points.

When Hickey approached Wayne, the officer testified the defendant claimed he didn’t know the park was closed because he can’t read. Added Hickey, “He called me a fat cunt [and] asked how many kids I’d had sex with,” and when he took him to jail, Hickey said Wayne told the magistrate he identified as an “African helicopter.”

This second guilty verdict apparently didn’t sit well with Wayne, who stood, called it “a farce of justice,” and said he was just trying to enjoy his Confederate statues.

“Your statues?” asked Moore of the Monterey man.

Wayne then asserted again that he couldn’t read the “no trespassing” signs.

“I don’t know [I’m trespassing] if I don’t know how to read,” Wayne said. And answered the judge, “I don’t think you know how to think. …Your attitude is horrible.”

Deputies stationed in the courtroom began inching toward the aggravated defendant, which is when he threw his pen and shouted an obscenity as he was being escorted out. Out of view, but within earshot, Wayne was charged with contempt of court. A short physical altercation could be heard as he was being handcuffed.

“Christopher!” exclaimed one of his supporters, who was also clearly frustrated.

“Bring him back in,” said the judge. Moore then added an additional 10 days for bad behavior onto Wayne’s 45-day jail sentence.

“If you want to keep adding to the sentence, I will let you do that,” the judge said, to which Wayne responded, “Great.”

Brian Lambert, who flashed a white power symbol at his last trial was also appealing his statue-related convictions, but, as the judge noted, behaved considerably better than Wayne this time around.

Moore found that Lambert, 50, was still guilty of the two trespassing and two destruction of property charges, but that the sentence Serkes initially imposed of eight months in jail was too harsh.

Even Antony, the prosecutor, said that punishment was “substantially more than what we would ever anticipate, and Moore sentenced Lambert to just 55 days.

The men didn’t have the right to interfere with the shrouds just because they didn’t like them, Moore reminded them. “We are a nation of laws,” he said.

Lambert said he was “embarrassed for the town,” after August 12, 2017, and the tarps “added insult to injury. …In my heart, I really honestly felt like I was doing the right thing.”

Quipped Wheeler, who also represented Lambert, “The road to hell is often paved with good intentions.”

Correction April 30: Josh Wheeler is the former director of the Thomas Jefferson Center for the Protection of Free Expression, not its current director.

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‘Grace and dignity’: Former UVA president Robert O’Neil remembered as constitutional icon

Robert O’Neil was president of UVA from 1985 to 1990 and a renowned constitutional scholar. Michael Bailey

It’s no surprise that Robert O’Neil, the University of Virginia’s sixth president, who died September 30, leaves behind an accomplished life, particularly in constitutional law. But what friends keep mentioning is his generosity, kindness, and concern for others—something that was reflected in his efforts to open the university to more diversity during his term in office.

A prominent defender of the First Amendment, especially free speech and freedom of religion, O’Neil founded the Thomas Jefferson Center for the Protection of Free Expression in 1990. The nonprofit organization defends First Amendment rights and annually gives out “Jefferson Muzzles” to call out “especially egregious or ridiculous affronts to free expression.”

UVA President Jim Ryan said O’Neil was a friend and mentor to him at the university’s law school, where they were colleagues. “I’ll never forget and always appreciate the great kindness he showed to me when I was just starting my career,” Ryan told UVA Today.

Boston born and Harvard educated, O’Neil came to Charlottesville in 1985 from the University of Wisconsin, where he served as president. He was UVA’s first president with no Southern ties.

His five-year tenure was short by UVA standards, and in 2012, he described to this reporter the Board of Visitors’ desire for change and the orderly transition of his departure—in sharp contrast to that year’s abrupt ouster of Teresa Sullivan, who was subsequently reinstated.

Although issues with the board arose during his first year, O’Neil said, “Both my coming and going were very smooth.”

UVA law professor Dick Howard, author of Virginia’s Constitution, met O’Neil in the early ’60s when they were both Supreme Court clerks—O’Neil for Justice William Brennan and Howard for Justice Hugo Black. “He really stood out,” says Howard. “I had enormous respect for him.”

O’Neil’s arrival at UVA in 1985 came during a time of transition, when it was still perceived as a place of privilege for students from comfortable backgrounds, says Howard. O’Neil took steps toward diversity. “He cared about the university being an open forum for people of other races and ethnic and religious backgrounds,” says Howard.

On a personal level, Howard says, “I admired his kindness, his humility, his sense of self. I never saw him posture or preen.”

O’Neil continued to teach constitutional law throughout his administrative careers. Josh Wheeler, who succeeded O’Neil as director of the Thomas Jefferson Center, first met him when he took his Freedom of Speech and Press course as a law student. “One aspect of his character that really defined everything he did was his generosity, particularly with his students,” but also everyone who sought his input on the First Amendment, says Wheeler.

The Thomas Jefferson Center was a “tremendous part of his legacy,” says Wheeler. “The center was Bob O’Neil. I feel privileged to have worked with him for 19 of the 21 years he was at the center.”

During that time, O’Neil established himself as one of the most respected defenders of free speech, says Wheeler, and the center weighed in on close to 200 cases. “Having his name on the brief immediately commanded the respect of other jurists.”

Howard agrees that O’Neil left his mark on free speech, open society, and religious freedom. “He was enormously respected throughout the country for constitutional law,” Howard says. But his character garnered respect as well.

“Grace and dignity were two of his prime qualities,” observes Howard. “For someone in a high position, that’s often a rarity.”

O’Neil, 83, died in his Washington, D.C., home surrounded by his wife of 51 years, Karen, and their four children. His family will hold a memorial  November 18 at the Cosmos Club in Washington.

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Kessler subpoenaed C-VILLE reporter

Two business days before Unite the Right organizer Jason Kessler was scheduled to stand trial on a felony perjury charge March 20 in Albemarle Circuit Court, C-VILLE Weekly reporter Samantha Baars was in Charlottesville General District Court, where a deputy handed her a subpoena to appear as a witness for Kessler.

Aside from First Amendment freedom-of-the-press issues, the subpoena posed another problem for the paper’s two-person news team: If Baars were sequestered as a witness, C-VILLE would have no one available to cover a case with considerable local interest.

Local attorneys James West and Josh Wheeler volunteered to challenge the subpoena and, with the support of the Rutherford Institute, prepared a motion to quash, which West filed just hours before the trial was scheduled to begin.

West says a federal court has identified reasons subpoenaing journalists is a bad idea, including the potential threat of judicial and administrative interference with news gathering. “If reporters are regularly subjected to open-ended subpoenas, they would be thinking of that in their reporting,” he says. “It would appear to turn reporters into an investigative arm of government or private parties.”

And as in C-VILLE’s case, it places a major burden on the limited resources of a small organization, says West. “You could be intentionally harassed. If a reporter has done a long series of articles that were not particularly flattering, [the subject] could subpoena the reporter so she couldn’t cover the trial.”

Kessler attorney Mike Hallahan told Baars, who had no first-hand knowledge of Kessler’s sworn statement to a magistrate that he was assaulted, which was the basis of the perjury charge, he was subpoenaing her for an October 10 article in which she’d interviewed Jay Taylor, the man Kessler claimed assaulted him.

In court, Hallahan objected to the motion to quash and initially to saying why he wanted Baars as a witness. “He wanted her as an impeachment witness for Taylor,” says West. C-VILLE was unable to reach Hallahan.

Judge Cheryl Higgins granted C-VILLE’s motion. “She was proactive in recognizing journalistic privilege,” says West.

Reporters in Charlottesville are not often subpoenaed to testify in court, but it’s happened before. A special prosecutor called NBC29’s Henry Graff as a witness in February for a case against Jeff Winder for assaulting Kessler August 13.

In 2007, Charlottesville prosecutor Claude Worrell, now a juvenile court judge, subpoenaed former C-VILLE editor Courteney Stuart, then a reporter for the Hook, to testify in a public drunkenness case.

Stuart appeared before Judge William Barkley with a motion to quash. “I cover crime,” she told the judge. “This is drunk in public—a minor crime. This week I’m also covering a capital murder. Am I to be called to testify in every crime I cover?”

Barkley denied the motion. At trial, Rutherford attorneys represented Stuart, but the defendants agreed to stipulate her story was accurate and released her as a witness. At that time, Worrell said he would subpoena reporters in the future because their role in a free press “does not mean they can opt out of their responsibility as citizens to provide information.”

Such a move “makes reporters an investigative tool of the court or government,” says Rutherford president  John Whitehead. “Not a good idea.” It also compromises journalistic integrity, particularly in instances in which a reporter has promised confidentiality to a source, he says.

“A subpoena can be used to intimidate reporters and lower their profile,” says Whitehead. “It threatens freedom of the press.”

Correction: Kessler claimed Taylor grabbed his arm and got in his face, but not that Taylor slugged him as originally reported.

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Colleges are free speech offenders in this year’s Muzzles

Thomas Jefferson Center for the Protection of Free Expression director Josh Wheeler discusses the stifling of free speech on college campuses, with Virginia’s University of Mary Washington and Old Dominion University making the list. Photo Cara Salpini

“The answer to speech you don’t like is more speech, not censorship.” That was Josh Wheeler’s message to an April 20 gathering for the 10th anniversary of the Free Speech Wall on the Downtown Mall.

And it’s a message directed to colleges and universities, 50 of which were the recipients of the 25th annual Jefferson Muzzle awards for stifling free speech across the county.

Wheeler, the director of the Thomas Jefferson Center for the Protection of Free Expression, says there were “unprecedented” affronts to free speech and cites several cases in which not only school administration, but sometimes students themselves were stifling free speech.

“They don’t want to be offended,” Wheeler says of college students at Clemson, Emory and several other universities who requested that the popular app Yik Yak be banned on campus because it was offensive.

Administrators at the University of Oklahoma got a Muzzle for punishing students who chanted a racist song. That caused a “domino effect” at other campuses, which proceeded to suspend free speech in similar ways, says Wheeler.

“Just because something is inappropriate doesn’t mean it’s not protected,” he says, stressing the importance of maintaining the First Amendment at college campuses.

Pointing to the wall behind him, Wheeler recalls his fears when it was erected in 2006. “My biggest concern was not what would be written on it,” he says, “but that after six months no one would be writing on it anymore.”

Ten years later, the wall remains colored with writing of all kinds and Wheeler notes that they have to wash it every couple of days to make room for more expression.

“Every college campus in the country ought to have one of these,” he says, smiling.