Pittsfield attorney's federal suit: First Amendment rights violated at 'Boston Free Speech' rally

Rinaldo Del Gallo

SPRINGFIELD — A Pittsfield attorney and former state senate candidate has a lawsuit in federal court against the city of Boston and several Boston officials, including Mayor Martin Walsh, alleging that his First Amendment rights were violated at the "Boston Free Speech" rally in August.

A motion for a preliminary injunction in the case will be heard Friday in Springfield.

Rinaldo Del Gallo, a self-described progressive, filed the complaint in U.S. District Court in Springfield on Nov. 11, claiming that Walsh, Boston Police Commissioner William B. Evans, Parks and Recreation Department Commissioner Christopher Cook and more than 300 police officers infringed on his constitutional rights at the August rally by not allowing him to enter the Parkman Bandstand in the Boston Common to speak, not allowing sufficient amplification for the speakers and preventing members of the press from being close enough to the speakers to sufficiently cover the event.

Del Gallo is seeking $250 million in actual damages from each defendant and $250 million in punitive damages, as well as the preliminary injunction allowing Resist Marxism to hold its upcoming scheduled "Rally for the Republic" gathering in the Boston Common on Saturday, during which he'll be allowed to speak.

A preliminary injunction is a court order filed before a final determination of the merits of a legal case.

"I've literally never heard of it happening," Del Gallo said Wednesday about the alleged limitations put on speakers and the media at the public rally in August. "It was kind of shocking."

On Aug. 19, the Boston Free Speech Coalition held the "Free Speech Rally" on the Boston Common. The event took place one week after a woman was killed and scores were injured at a Unite the Right rally in Charlottesville, Va., when a car plowed into counterprotesters.

The organizers of the Boston event had planned their rally before the attack in Charlottesville and had adamantly tried to distance themselves from the neo-Nazis, white supremacists and others who incited the violence in Virginia.

Still, the Boston rally drew more than 40,000 counterprotesters who chanted anti-Nazi slogans and overpowered the small group of Free Speech rally attendees.

It also drew a massive police presence and policies that Del Gallo alleges were "repressive."

"The Boston Free Speech Rally of August 19, 2017, ironically became one of the greatest specimens of the repression of free speech by a municipality," Del Gallo wrote in the complaint.

Del Gallo was invited to speak at the event by one of the organizers, John Medlar, to add a progressive voice to the rally.

While Del Gallo said he doesn't agree with the "alternative right," he is an advocate for free speech and attended the rally in support of the cause.

When he arrived at the bandstand in August, police security kept ushering him from gate to gate, and eventually that police presence, as well as restrictions, prevented him from speaking, he said.

"I knew that the people there were not going to be white supremacists," Del Gallo said. "I figured it out, but he (Walsh) didn't."

When contacted by The Eagle, Medlar declined to comment on Del Gallo's lawsuit and referred questions about Saturday's rally to the Resist Marxism website.

Those who attended the August rally, including members of the media, couldn't hear those who had the opportunity to speak because they were not allowed to use amplification other than bullhorns, Del Gallo said.

The media were kept outside a "buffer zone" and were unable to hear the speakers, he added.

Del Gallo is not the only person who took issue with media access to the August event.

In October, the New England First Amendment Coalition, the Massachusetts Newspaper Publishers Association, the New England chapter of the Society of Professional Journalists, the American Civil Liberties Union and the ACLU of Massachusetts sent the city a joint letter in response to the August rally. In it, they requested a meeting to discuss how the city can provide security while also protecting First Amendment rights and demanding increased press access to public demonstrations on the Boston Common.

On Thursday, the groups filed an amicus brief in Del Gallo's case, not taking the side of either party, but rather requesting that the judge order that media be allowed close-up access to public areas where speakers assemble Saturday and ensure that no member of the press is given less access than any member of the public.

John Ward, a spokesman for the ACLU of Massachusetts, said Wednesday that the organization is sending "legal observers" to Saturday's event to make sure press access isn't limited.

"Nobody from the Boston Free Speech Rally appointed the Boston Police to be gatekeepers — nonetheless they repeatedly refused my demands to be allowed to go to the Parkman Bandstand," Del Gallo said about the August rally.

In a response to the motion for a preliminary injunction that was filed Wednesday, an attorney for the city and named defendants called Del Gallo's claims about the August rally "factually inaccurate."

Del Gallo was permitted to enter the "cordoned off" area near the bandstand and was granted access by a police officer, but by the time he arrived to speak, at about 12:30 p.m., the program had concluded and officers were "extricating rally participants to a safe location," wrote attorney Eugene L. O'Flaherty, who represents the city of Boston.

In the motion for a preliminary injunction, Del Gallo requests access to speak and access for the media to Saturday's Rally for the Republic event, where speakers will not be separated from "non-protesting audience members."

He also wants a federal court judge to order the city to allow a "quality sound system" to be used and for the city to provide several dates for similar rallies in the spring, summer and next fall.

On Sept. 18, Mark Sahady, a representative of the Resist Marxism group, applied for a permit for the Parkman Bandstand with the Boston Department of Parks and Recreation for Saturday's "patriotic themed" rally.

On Oct. 26, the agency denied the group's permit because Saturday morning was booked by another organization for a 5-kilometer footrace, but it offered a permit for Sunday, which the group didn't accept.

Resist Marxism said in a statement that it intends on holding the event at noon Saturday, without a permit, because it finds the reasoning behind the denial "insufficient" and it took too long for the city to respond to the application.

"Their actions give the appearance that there are other reasons for the permit denial rather than just bureaucratic inefficiency," the statement read.

O'Flaherty said in opposition to the motion that because Del Gallo wasn't the person to file a request for permits in either rally, he does not have the right to seek relief on behalf of the organizers.

The city already has told organizers that, despite their lack of a permit, it will not interfere with the right of any individual, including Del Gallo, to speak on the Boston Common on Saturday, and so therefore Del Gallo also can't show a likelihood of irreparable harm in the absence of an injunction, which is a requirement for the pre-emptive judicial intervention, O'Flaherty wrote.

"Therefore, there is no actual claim which justifies the Court's intervention," he said. "Moreover, it is important to note that while a special event permit from the (Boston Parks and Recreation Department) is required to reserve a particular location within Boston's Parks for exclusive access or to arrange a larger-scale event that includes staging or sound amplification, an individual is in no way restricted from exercising his (or) her right to speak in a traditional public forum such as the Boston Common."

The city defended its denial of the permit for Saturday, referencing the more than 40,000 counterprotesters, confiscation of dangerous weapons, assaults on officers and members of the public and dozens of arrests made at the August rally.

Del Gallo called the city's response to his motion "poppycock," and that anyone whose constitutional rights were encroached on could have filed suit, regardless of whether their name was on the application for a permit.

Del Gallo also said he is "shocked" that the city would say he was allowed access when he recorded a video that shows otherwise.

"If they have no intention of interfering with the media this time, then they should have no problem with the (court) order," Del Gallo said.

Mayor Walsh's office declined to comment on the pending lawsuit.

In regard to the high dollar amounts sought in the suit, Del Gallo said he doesn't realistically expect to be awarded millions of dollars in damages, but he claimed the damages in an effort to not set an upper limit to what he could be granted.

The monetary damages of First Amendment violations are immeasurable, Del Gallo said.

"I don't really expect to walk away with almost half a billion dollars," he said. "It's just a pleading technique."

If the judge doesn't intervene before Saturday, Del Gallo expects that counterprotesters might try to block access to the bandstand or try to drown out the Resist Marxism speakers.

"There's a likelihood of havoc if there's no judge order" before Saturday, Del Gallo said.

Haven Orecchio-Egresitz can be reached at horecchio@berkshireeagle.com, at @HavenEagle on Twitter and 413-770-6977.