Lawyers vs. White Supremacists

Can the organizers of the Unite the Right rally be held responsible for the violence in Charlottesville?

White supremacists and neo-Nazis clash with counter-protesters during the Unite the Right rally on Aug. 12 in Charlottesville, Virginia. 

Chip Somodevilla/Getty Images

On Wednesday morning, schools across Charlottesville, Virginia, were placed on lockdown following an internet threat of a Las Vegas–style mass shooting. On Wednesday evening, alt-right leader Richard Spencer, who helped mastermind the Aug. 12 white supremacist rally that resulted in the death of 32-year-old Heather Heyer, was given unchecked airtime on the city’s NBC affiliate. He used that television spot to explain why his white supremacist followers had staged yet another torch-lit march through the city’s streets on Saturday and to announce that they would be returning again soon. Nobody asked Spencer whether he bore any responsibility for the death and injuries in Charlottesville or for the town’s ongoing daily trauma. In Spencer’s view, the law and Charlottesville exist to be victimized and then victimized again.

But if local journalism is content to fête and fetishize white supremacy, the law is not quite so sanguine. A lawsuit filed Thursday morning seeks to hold Spencer and the organizers of the Aug. 12 Unite the Right rally accountable for the harms and injuries they caused. The suit, filed by 11 plaintiffs harmed that day, was filed in federal court in the Western District of Virginia. Plaintiffs include clergy leaders, peaceful protesters, and University of Virginia students. One suffered a stroke. Two were struck in a car attack. Among the named defendants are Spencer, rally organizer Jason Kessler, Vice interviewee Christopher Cantwell, Daily Stormer founder Andrew Anglin, and James Alex Fields, the driver of the car that killed Heyer.

The suit was brought by a pair of seasoned litigators: Roberta Kaplan, who successfully represented Edie Windsor in the 2013 case challenging the Defense of Marriage Act, and Karen Dunn, a former federal prosecutor in Virginia. (Disclosure: Kaplan is a friend.) It was funded by a new nonprofit, Integrity First for America, dedicated to defending democratic norms and ensuring equal rights for every American. “The whole point of this lawsuit is to make it clear that this kind of conduct—inciting and then engaging in violence based on racism, sexism, and anti-Semitism—has no place in our country,” Kaplan told me via email. “We are a nation of laws, dedicated to the principle that all people are created equal. On behalf of our very brave clients, we are using those laws to prevent these defendants and others like them from being able to repeat what happened in Charlottesville ever again.”

The 96-page filing, which accuses the white supremacists of violating the Ku Klux Klan Act of 1871 and other statutes, paints a picture of the events in Charlottesville that bears no resemblance to the president’s “good people on both sides” narrative. It is shot through with tweets, photos, and messages that capture the gleeful planning and howling execution of an event that was intended to be the largest and most terrifying white supremacist event in decades.

The complaint alleges:

Defendants are the individuals and organizations that conspired to plan, promote, and carry out the violent events in Charlottesville. They are neo-Nazis, Klansmen, white supremacists, and white nationalists. They embrace and espouse racist, anti-Semitic, sexist, homophobic, and xenophobic ideologies. Defendants brought with them to Charlottesville the imagery of the Holocaust, of slavery, of Jim Crow, and of fascism. They also brought with them semi-automatic weapons, pistols, mace, rods, armor, shields, and torches. They chanted “Jews will not replace us,” “blood and soil,” and “this is our town now.”

It proceeds to allege that the violence in Charlottesville was far from accidental:

There is one thing about this case that should be made crystal-clear at the outset—the violence in Charlottesville was no accident. Under the pretext of a “rally,” which they termed “Unite the Right,” Defendants spent months carefully coordinating their efforts, on the internet and in person. They exhorted each other: “If you want to defend the South and Western civilization from the Jew and his dark-skinned allies, be at Charlottesville on 12 August,” and, “Next stop: Charlottesville, VA. Final stop: Auschwitz.” In countless posts on their own websites and on social media, Defendants and their co-conspirators promised that there would be violence in Charlottesville, and violence there was.

The trauma described in the complaint is equally horrifying. As Nazis and white supremacists congratulated one another on the violence and bloodshed, citizens of Charlottesville were hurt, threatened, and killed. An ordained minister with the United Church of Christ was beaten and harassed while he peacefully counter-protested with other clergy. Tyler Magill collapsed at his place of work and suffered a trauma-induced stroke immediately after the protest. A Jewish plaintiff, who participated in the counter-protest with her son, suffered harassment after the Daily Stormer posted their picture online. A UVA student was sprayed with chemicals. A black landscaper was struck by the same car that killed Heyer.

The legal claim here is that the defendants conspired to turn the past few months into what Anglin described as “the Summer of Hate,” writing, “When the Jews took over our society and turned it into a kiked-out living hell, they marked their achievement by declaring a ‘Summer of Love.’ … They took everything away from us. That age is ending now. We are taking back our birthright. This summer, a Black Sun will pass over America.” The complaint alleges that the defendants used the internet and in-person meetings—including a gathering at the Trump Hotel in Washington—to organize and direct the Aug. 12 rally and “made use of websites, social media (including Twitter, Facebook, 4chan and 8chan), chat rooms, radio, videos and podcasts to communicate with each other, and with their co-conspirators, followers and other attendees and did so to plan the intended acts of violence, intimidation, and the denial to citizens of the equal protection of laws.”

The defendants used the chat platform Discord to arrange meetups, coordinate actions, and plan the weekend. Those chats included exhortations such as:

  • “I’m ready to crack skulls.”
  • “If you don’t have a flame thrower you’re wrong.”

  • “It’s going to get wild. Bring your boots.”
  • “Studies show 999/1000 niggers and feminists fuck right off when faced with pepper spray.”
  • “Bringing women to a protest/rally where we expect violence is fucking retarded … even if you aren’t expecting violence you should prepare for it.”

Cantwell “encourage[d]” his followers “to carry a concealed firearm.” Another conspirator said he would be bringing rifles “with bayonets attached.” Organizers told attendees that there would be “money and a legal team set aside for” arrestees. They also used the internet to coordinate transportation and to discuss whether car-ramming was legal. One posted, “Is it legal to run over protestors blocking roadways? I’m NOT just shitposting. I would like clarification. I know it’s legal in NC and a few other states. I’m legitimately curious for the answer.” They also used the internet to celebrate Heyer’s death, with one writing, “Dirty apes playing in the street gotta learn the hard way #Charlottesville.” And Cantwell told a Vice reporter, “I’d say it was worth it. Nobody on our side died … none of our people killed anybody unjustly … our rivals are just a bunch of stupid animals who don’t pay attention that couldn’t just get out of the way of the car.”

In addition to the civil rights statutes, the plaintiffs are relying in part on a legal theory that prevailed in a suit against the Nuremberg Files, a website that targeted abortion providers by listing their names, addresses, and license plate numbers and striking through providers who were killed. That case prevailed in the federal courts on the theory that the line between protected free speech and incitement to violence is knowable and that a “true threat” to commit acts of violence can cross the line if made on the internet to provoke violence. While the Supreme Court declined to hear the case, the 9th U.S. Circuit Court of Appeals agreed with the plaintiffs, Planned Parenthood, that “being listed on a Nuremberg Files scorecard for abortion providers impliedly threatened physicians with being next on a hit list.”

I asked Seth Wispelwey, a minister with the United Church of Christ, why it was important to him to be named in this suit. “I’m grateful to join this vital effort not only to rebuke white supremacy in its most explicit, violent forms, but also to hopefully see a life-giving precedent made,” he told me. “White supremacy infects our country’s DNA and no one is untouched. This is one opportunity to unmask the pervasiveness of this national soul-sickness, weaken its appeal, and invite people to stand with those whom white supremacy seeks to dehumanize.”

Just hours after Kaplan and Dunn filed their federal lawsuit, a different group filed a second suit in state court challenging the presence of private armed militias in Charlottesville. This suit, seeking no money damages but only an injunction to stop future private military action, relies on a rarely invoked provision that dates back to the Virginia Declaration of Rights of 1776, which provides that “in all cases the military should be under strict subordination to, and governed by, the civil power.”

This suit was brought by the law firm MichieHamlett and the Institute for Constitutional Advocacy and Protection at Georgetown Law School; the latter group is spearheaded by Mary McCord, a former federal prosecutor who headed up the Department of Justice’s national security division. The named plaintiffs here are a host of local business owners as well as the Charlottesville City Council, which voted early Thursday to join the lawsuit.

The complaint notes that the city was teeming with paramilitary forces on Aug. 12, some of which were aligned with the alt-right and some of which claimed to be there to keep the peace. As the complaint notes, none of them answered to any governmental authority and these “paramilitary organizations and their leaders (the Alt-Right Defendants) wielded their weapons on August 12 not ‘as individuals’ exercising their Second Amendment rights to self- defense, but ‘as members of a fighting force.’ ” Their suit contends that the Framers never contemplated unregulated militias armed to the teeth, without governmental oversight.

Charlottesville is a city in pain, and for those who live there, it isn’t just a set for the white nationalist edition of The Apprentice. The alt-right cowards who sneak in with tiki torches by night, but not before alerting the press and fixing their hair, may not be quite as immune from litigation, discovery, and legal accountability as they believe. Litigation is slow, and discovery will take time, but the arc of the moral universe is built on more than just preening and tweets. The president utterly failed Charlottesville this summer, as did much of the press. The law should not.