The Architects Behind Violence in Charlottesville May Have Doomed the Alt-Right

One of the biggest cases of the year isn’t before the Supreme Court; it doesn’t involve an adult film star, corrupt operatives, Russia, or the president. It pits celebrities of a different type against one another: superstar litigators Karen Dunn and Roberta Kaplan—who argued the landmark gay rights case United States v. Windsor—are taking on ignominious white supremacist Richard Spencer and 24 of his ilk who planned, executed, and celebrated the Charlottesville riots together.

Funded by Integrity First for America, a nonpartisan nonprofit dedicated to defending democratic principles, the suit charges the defendants with conspiracy to deprive plaintiffs of their civil rights and failing to stop the anti-civil rights conspiracy under federal law.

The two federal provisions under which Kaplan is bringing suit were Congress’s attempt at codifying the 13th Amendment. That’s a little unusual: The 13th Amendment was passed to end slavery and interpreted by the courts to extend to “the badges of slavery.” Today, it’s rarely invoked.

When I spoke to Kaplan in February, a month-and-a-half after the amended complaint was filed, I asked her about her choice of charges. She pointed out that the deprivation of rights in Charlottesville did center on race. Echoing my gut reaction, she commented, “No one would think we’d be litigating the 13th Amendment anymore in 2018.”

The complaint includes an even wider-reaching set of charges under Virginia law. 

It’s not just the array of charges that makes the case a sizable undertaking. “Not just the size of the conspiracy and the complexity of the story,” Kaplan points out, “but the massive cost because of who the opponents are.” The case against the white nationalists comes down to three points:

  1.   They planned to do this.
  2.   They did it.
  3.   They celebrated successfully doing this.

There’s extensive evidence of planning, irrefutable multi-media documentation of the rally and its sequelae, and an abundance of proof of the celebrations that followed. Though portrayed some places as a case about incitement, it’s not. Rather, as Kaplan says, “it’s all in the family.” The defendants allegedly conspired with one another and with one another’s groups to commit violence.

The defendants’ first-line defense, as I noted before, is the First Amendment. They’re claiming they were just exercising their rights to free speech, association, and assembly. I stand by my comparison: It’s about as viable as Ocean’s Eleven asserting a First Amendment defense to conspiracy charges.

Their second-order defense was no better; in fact, it wasn’t really based in law at all.

Essentially, they claim the lawsuit is part of a scheme to oppress white supremacists and hate-minded compatriots.

Lately, they’ve been pushing a self-defense defense. "It's become clear that part of their defense in the case was going to be, 'This is all self-defense,'" Dunn told BuzzFeed. As with their planning, execution, and celebration, however, the defendants left ample evidence of their intent to falsely claim self-defense. 

The parties are currently waiting on the outcome of a May 24 hearing: The defendants have made a number of motions to dismiss. None appear viable, thanks in part to the embarrassment of evidence against the defendants. But, in a way, this is a critical juncture, if you recognize the significance of discovery in this case. As I wrote in February, this suit could expose the far-right’s structures, networks, and funding streams. 

If Kaplan and Dunn win the case altogether, their victory will do more than set back this particular iteration of the far-right. They’re seeking a declaration from the court that the defendants’ actions deprived the plaintiffs of their civil rights, an order instructing the defendants not to violate rights again, and damages.

The first form of relief—a declaratory judgment—would be a massive coup: It’d mean a federal court specifically stating that what the Charlottesville organizers did was illegal, setting precedent that while not binding would be influential and potentially even deterring future such actions.

The case is a critical test of private citizens’ ability to step in for the Justice Department to enforce civil rights laws the Trump administration won’t. It’s also a rare breed of civil conspiracy case, most closely resembling a suit brought against anti-abortion activists who “doxxed” physicians who provided abortions, leading to multiple murders. If successful, it sets a precedent for bringing similar cases against individuals and groups who conspire online in a similar manner.

I also asked Kaplan about the extent to which the defendants appear interested in playing the case out in public. “They’re clearly trying to do that,” she said. “A lot of the stuff about me is Jew, Jew, Jew, Jew, Jew, lesbian, Jew.” They’re rightfully concerned, I gather, that the Charlottesville jury they’ll face isn’t too likely to be unsympathetic. But Kaplan’s unworried.

“I’m one of these naïve idealists that believes that at least in a courtroom facts really matter,” Kaplan says. “There’s no such thing as fake facts in a courtroom. Evidence has to be admissible and subject to the rules.”

She says it’s not an ideological case about Trump or Obama, but a case about 10 people who were horribly injured. I believe her. But, of course, the ruling will be synecdoche, just as mentioning the events that necessitated it refers not just to an isolated instance in Charlottesville, but the public and violent resurgence of a set of beliefs that had hitherto been almost in abeyance.

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