Last August, a far-right rally called “Unite the Right” took over the college town of Charlottesville, Virginia, for two days. By the time police managed to clear the streets of protesters and the state of emergency had been lifted, 19 people had been injured (some seriously) and one woman, Heather Heyer, had been killed by a white supremacist who drove into a crowd of counterprotesters.
Now, a group of Charlottesville residents is fighting back against the white nationalists who took over their city. And they’re going to court with money from a new nonprofit group and with the lawyer who argued — and won — a landmark marriage equality case before the Supreme Court.
The plaintiffs in Sines v. Kessler are arguing that the “Unite the Right” rally wasn’t an expression of free speech that got out of hand, but instead, as lead attorney Roberta Kaplan told me, “a direct conspiracy to commit violence.”
Kaplan’s team collected thousands of hours of chats and videos created by the defendants and leaked online — including white nationalist pundit Richard Spencer, rally organizer Jason Kessler, and Andrew Anglin, founder of the neo-Nazi Daily Stormer website — that urged participants to prepare for and commit violence in Charlottesville.
Whether the chats will convince a judge that the planners aimed to incite violence, they certainly make it clear that the claim “many fine people” were on both sides in Charlottesville doesn’t hold up. Anglin wrote in a speech delivered by a fellow neo-Nazi after the rally that “a day is quickly coming when it is we who will be digging graves.”
The case was filed in October, with a scheduling hearing set for March 16. If the plaintiffs win, it won’t just be a legal victory. They could bankrupt the most virulent parts of the alt-right, a loosely affiliated far-right group that embraces white nationalism, and perhaps stop another Charlottesville from happening in the first place.
“I decided that we should do something about it”
The plaintiffs in the case, underwritten by a new group, Integrity First for America, include the Rev. Seth Wispelwey, a minister at Sojourners United Church of Christ in Charlottesville. He joined other faith leaders in protesting the “Unite the Right” rally, eventually blocking the entrance to a park where white supremacists intended to gather before they got shoved aside by white nationalist rally attendees holding shields.
— Congregate C’ville (@CongregateVille) August 12, 2017
When we spoke, the minister told me that he wanted to participate in the lawsuit to show that the actions of the “Unite the Right” rally-goers had consequences, but he also wanted to take a stand against white nationalism. “I believe that white supremacy is violence,” he said, “and that those groups and individuals that brought it to Charlottesville … exacted very real trauma on the lives of myself and many other people in our community.”
Wispelwey and his fellow plaintiffs, led by attorneys Kaplan and Karen Dunn, argue that the violence of the “Unite the Right” rally was premeditated, making the actions that took place on August 11 and 12 evidence of a conspiracy — not simply “free speech” that got out of hand.
Kaplan is most famous for arguing the case US v. Windsor before the Supreme Court in 2013 on behalf of her client, Edie Windsor — a case that resulted in a landmark decision invalidating a section of the Defense of Marriage Act, eventually leading to the invalidation of all state and federal laws against same-sex marriage. When I spoke to Kaplan, she said that her reasoning for taking on Sines was deeply personal.
“As someone growing up as a Jewish kid in Cleveland, Ohio in the ‘70s and ‘80s, my entire religious education was imbued with imagery of facts about the Holocaust. That was something I very much grew up with and had a huge impact on me as a kid,” she told me. “I think if you had told me back then that something like [Charlottesville] would ever happen on the streets of an American city, I would have told you you were nuts. And when it happened, I think I, like many, many people, was kind of in a state of shock.”
Using the alt-right’s words against them — in court
Kaplan said that the idea behind the suit against the “Unite the Right” organizers came from a 1990s lawsuit against the creator of the “Nuremberg Files” website, which listed the names and personal information (including home addresses) of abortion providers complete with a legend: “Black font (working); Greyed-out Name (wounded); Strikethrough (fatality).” In Planned Parenthood v. American Coalition of Life Activists, a US district court eventually ruled that such websites that clearly encouraged readers to take a violent action constituted a “true threat.”
Kaplan told me that in their case, he argues their evidence is even more direct. “The people who we sued weren’t encouraging other people to [commit violence], they were encouraging their own co-conspirators and followers and themselves to do it.” And tweets, podcast discussions, and transcripts from the gamer chat platform Discord show, in Kaplan and her co-counsel’s view, that encouragement by the rally’s organizers was ample and that attendees were expected to prepare for — and commit — violence in Charlottesville:
● “You have a week, bros. Best spend it having four or five of your friends simulate jumping you. Go light, don’t get injured before the event, and focus on blocking and pushing back in ways that don’t look like assault.”
● “I’m ready to crack skulls.”
● “Let’s make this channel great again. The Carolinas (kind of) started the Revolutionary War and the Civil War, so why not add the Race War / Second Civil War to the list?”
● An image of a raised fist holding a dagger by its blade, dripping blood, over the words “FIGHT UNTIL THE LAST DROP.”
From the Daily Stormer’s website:
● “We are going to build an invisible empire. This has all been worked out in my mind a long time ago, and this summer, the Summer of the Black Sun, is when we are going to bring it all together.”
● One defendant tweeted: “If you want to defend the South and Western civilization from the Jew and his dark-skinned allies, be at Charlottesville on 12 August.”
Co-council Karen Dunn, a former federal prosecutor in Virginia whose past defense work has included representing the owner of Comet Ping Pong in Washington, DC, told me that’s just not true.
“This case is not about speech, it is about conduct,” Dunn said. “The defendants in this case planned, premeditated, and perpetrated violence. Their own communications — which are detailed in excruciating detail in our complaint — will show that they did this at an extremely high level of purposeful coordination.”
Why “free speech” can be a defense for hate
The “Unite the Right” rally organizers are using the First Amendment as a defense. In his motion to dismiss the suit, Richard Spencer (who was unable to obtain an attorney) wrote that the lawsuit is a “conspiracy theory in the true sense of the word” and that no allegations made in the complaint include behavior not covered by the Constitution — making Sines v. Kessler an example of a lawsuit intended to “intimidate, silence, financially damage, or generally harass defendants.” Spencer did not respond to a request for comment for this story.
Some of the other defendants are being represented by Cincinnati-based attorney James E. Kolenich, who told the Cincinnati Enquirer that he’s getting involved “to oppose Jewish influence in society.”
In response to a request for comment, Kolenich said that the case “has the potential to set important precedent in the country’s law,” adding that the court will be asked, “At what point does zesty online banter and memes cross the line into an unlawful conspiracy to do violence?” He said that the plaintiffs wanted to hold the defendants responsible for everything that happened in Charlottesville — and if it works, “that will be great for trial lawyers, but I’m not so sure it will be good for the country.”
To make their case, Kolenich and the other attorneys for the defense will argue that the “Unite the Right” organizers needed to be organized and prepared in order to defend themselves from attacks. And they are relying on a fact of American law: “Inflammatory speech” — that is, speech that angers or upsets or offends — is generally protected speech, even in a rally setting.
The exception is when that speech is “directed at inciting or producing imminent lawless action” or “likely to incite or produce such action.” That precedent was set nearly 50 years ago in Brandenberg v. Ohio, in which a Ku Klux Klan leader was convicted under an Ohio law that made it illegal to publicly advocate for criminal activity (In Brandenberg, that activity was declaring that if the government “continues to suppress the white, Caucasian race,” there might be some sort of “revengeance” taken.)
Fact-checking “Unite the Right”
To understand both the plaintiff’s legal argument and the “Unite the Right” defendants’ expected defense, I spoke with two attorneys who are not involved in the case proceedings. Ken White, a Los Angeles-based criminal defense lawyer, former assistant United States attorney, and founder of the legal blog Popehat, went over the plaintiff’s arguments, and Rod Smolla, dean and professor of law at the Widener University Delaware Law School, talked to me about how he expected the defense to respond.
White told me that in his view, Kaplan’s team has taken care to try to ensure that Sines v. Kessler doesn’t run afoul of free speech concerns. “It’s clear that it’s been drafted with First Amendment limitations in mind, and is calculated to survive a motion to dismiss by providing enough factual allegations” against the defendants. That’s because Sines v. Kessler is more focused on proving that the “Unite the Right” organizers conspired to violate the civil rights of Charlottesville residents — meaning that their speech could be proof of a conspiracy, rather than being criminal in and of itself.
“So, for instance, ‘hate speech’ is generally protected by the First Amendment,” White said, “but it’s quite admissible to demonstrate somebody’s intent in assaulting someone.”
In other words, you can say, “the Jews deserve violence,” and have that speech protected by the Constitution, but if you go on to commit a violent hate crime against a Jewish person, that speech can be admitted in court as evidence against you.
But Smolla told me that Jason Kessler and his “Unite the Right” co-planners will try to say that that’s not true, and will argue that their efforts to speak their minds publicly are protected by the First Amendment — no matter the venue. “The defendants will certainly maintain that they cannot be held liable for exercising their rights of expression, assembly, and the petitioning of government. … [They] will argue they merely sought to assemble peaceably to express their views on race and the symbols of the Confederacy.”
“They want justice”
Kaplan, Dunn, and the other attorneys representing the plaintiffs in Sines v. Kessler are hopeful that the discovery phase of the lawsuit could help determine where the alt-right and the far right gets its funding. While some of the money that helped to fund “Unite the Right” came from crowdfunding sites like Hatreon, it’s unclear whether other, larger funders played a part.
But Kaplan told me that if her clients win in court, “it is very unlikely that the monetary judgments that we will receive, ultimately, can be satisfied by these defendants.”
And to her, and to the plaintiffs, that’s not really the point — because they don’t just want money, she told me, “they want justice.”
“They want a judgment, a verdict, that what these people did is illegal and wrong. They want, like many cases in the justice system, to send a message of deterrence to other people who might be thinking about this. That if you do this, if you even try to do something like this ever again, the same thing’s gonna happen to you.”
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