'The long-term hope is to bankrupt the groups': The KKK Act case against the 'Unite the Right' organizers

Four years after the deadly white supremacist "Unite the Right" rally in Charlottesville, Virginia, a federal civil trial charges the organizers with an unlawful conspiracy to commit violent acts. Defendants include Jason Kessler, the main organizer, and Richard Spencer, a white nationalist who spoke at the event. Neo-Nazi James Alex Fields, who slammed his car into a crowd of antiracist counterprotesters during the rally and killed activist Heather Heyer, has already been sentenced to life in prison. Plaintiffs in the case cite the careful advance planning done in online chatrooms to wreak irreparable harm. We look at the details of the case with Slate legal correspondent Dahlia Lithwick, who lived in Charlottesville during the 2017 rally, and also its relation to the murder trial of Kyle Rittenhouse now starting in Kenosha, Wisconsin, where the judge has ruled the three protesters shot by the white teenager during racial justice protests last year cannot be labeled "victims."

Transcript

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AMY GOODMAN: Four years after the deadly white supremacist "Unite the Right" rally in Charlottesville, Virginia, jury selection has begun in a federal civil trial that charges the organizers with an unlawful conspiracy to commit violent acts.

On August 11, 2017, in what's been billed as a climax to a summer of hate, several hundred white supremacists marched with tiki torches across the University of Virginia, surrounding a statue of Thomas Jefferson, chanting, "You will not replace us," "Jews will not replace us," and "White lives matter."

At the next day's Unite the Right rally in downtown Charlottesville, more than a thousand white supremacists marched to a statue of Confederate General Robert E. Lee. Thousands of counterprotesters also descended on the city, including clergy, students, Black Lives Matter activists and protesters with the anti-fascist movement known as antifa. Even as fights broke out, witnesses report police did little to intervene.

Around 1:45 in the afternoon that day, self-described neo-Nazi James Alex Fields slammed his car into a crowd of antiracist counterprotesters, killing Heather Heyer and injuring at least 35 others. Fields was later sentenced to life in prison.

Those now charged in the civil trial for the violence in Charlottesville include Jason Kessler, the main organizer, and white supremacist Richard Spencer, who spoke at the event. The civil lawsuit cites an 1871 law known as the Ku Klux Klan Act, which allows private citizens to sue other citizens for civil rights violations. This is Elizabeth Sines, one of the plaintiffs in the case, speaking about what she witnessed.

ELIZABETH SINES: The memories from those two days will undeniably haunt me for the rest of my life. I will never forget what it was like to watch Nazis march on a campus that I called home. I will never forget watching them attack my fellow students, or the feeling of running for my life through streets I had walked with friends and family countless times before. I don't think anything can ever really prepare you to witness something so horrific, watching your home be overrun by people who wish to cause as much harm and wreak as much havoc as possible.

AMY GOODMAN: The lawsuit was filed by the civil rights group Integrity First for America. Much of the case is based on an extensive paper trail left behind by organizers of the Unite the Right rally in online chatrooms. One of the plaintiffs' lawyers, Karen Dunn, told CNN what most stood out to her in the documents.

KAREN DUNN: The image that has stuck with me ever since the beginning of the case was one of the Discord post pictures. It shows a tractor running people over, and it's called the "protester digester." Look, there's many, many posts in this case about running over people with cars, prior to the car attack on August 12th, but that one, to me, was — like, I can't get it out of my head.

AMY GOODMAN: For more, we're joined by Dahlia Lithwick, Slate.com's senior editor and senior legal correspondent, longtime resident of Charlottesville for 18 years. She was living there at the time of the Unite the Right riot in 2017.

Dahlia, welcome back to Democracy Now! This is a highly unusual court case, as the jury selection continues. Can you explain more about what it is all about?

DAHLIA LITHWICK: Essentially, I think the way to think about it, Amy, is, if the Trump Justice Department had been doing their job at the time, they would have brought some kind of civil rights action in the wake of Charlottesville to hold to account the organizers of this rally, who, as you've just said, were clearly planning, thinking about, anticipating violence and harm and mayhem and terrorizing the local community. Nobody did that at the Justice Department. As you recall, President Trump at the time said there were very fine people on both sides of that protest.

And so, this is a lawsuit that, as you said, Karen Dunn, Robbie Kaplan and their associates brought into the vacuum, and essentially said, "Fine, we are going to dust off the KKK Act of 1871." It has not been used recently at all, but it does give a sort of a template for what you can do if your civil rights were violated, how you can bring a civil suit, and essentially hold to account the people who came to your town to terrorize you on the basis of race.

And so, in a sense, it's a novel, it's a very sweeping lawsuit. We've seen lawsuits, criminal lawsuits, against some of the folks who have been involved, but this is really an effort to bring a big, expansive, sprawling suit against all 24 of the organizations and organizers and to say, "If the government is not going to do this, we're going to do it." And all nine of the plaintiffs who were harmed are saying, "We want money damages. We want to know who your funding sources are. We want to understand how these networks of hate groups work together." And it is kind of an attempt to shake up the entire day and display to the public what happened and how do we hold people accountable.

AMY GOODMAN: So, explain who exactly is on trial. And to be clear, if found guilty, they don't go to prison.

DAHLIA LITHWICK: Right, and there's not even a finding of guilt, because it's a civil trial. So, there is a dollar amount, that has not been named yet. Judge Norman Moon, at some point, can set the damages amount.

But the groups that are involved are some of the who's-who of the "alt-right" movement — as you already said, Richard Spencer, who famously said, you know, "Heil Trump," right after the election and says he coined the term "alt-right"; Jason Kessler, who was the local point person in the trial; Chris Cantwell, the so-called Crying Nazi; a bunch of different Klan groups who showed up that day. And some of these defendants have already had judgment against them for refusing to participate in the trial. Some of them haven't shown up. Both Spencer and Chris Cantwell are defending themselves; they don't have attorneys. So you have this kind of motley crew of defendants who were involved at various levels.

And then, as you said, there is this 5.3 terabytes of digital evidence that shows that, for weeks in advance, they were planning what to wear, what kinds of things to bring that they could use as weapons. They were chatting, as you said, about what it involves to hit someone with a car and what the law says to protect you.

And so, I think this is an effort to get all of them lined up to tell the entire pixelated story of what was done, and then the judge will find money damages. I think the long-term hope is to bankrupt the groups, as well.

AMY GOODMAN: And how do you answer what these white supremacists, like Richard Spencer, who, what, is representing himself, are saying, that this is an attack on freedom of speech?

DAHLIA LITHWICK: That's always been their defense. They essentially have two claims. One is that this was just a peaceful march. They came to protest. This is core First Amendment right to assemble and the core First Amendment right to protest.

The answer is, it stopped being a protest when it became clear that they were coming in full body armor with flaming torches and other weapons of war and that they never intended to have a peaceful rally. In some sense, I think the argument is, as soon as people were bringing guns into the mix, as soon as they were bringing spears into the mix, they lost the right to say this was simply a peaceful march.

Now, Richard Spencer and his colleagues are saying that's the police's fault. You know, they are citing to a report that came out, an extensive report that came out after August 12th, saying that the police presence was, in fact, lackluster, that both the state of Virginia and the city of Charlottesville were not well organized. And so, they are going to say it was free speech, it's the police's fault, and also they're going to blame antifa, as you said in the introduction. They're saying that all of the violence was instigated by antifa, the peaceful clergy who were protesting that day and the other counterprotesters who showed up to try to claim the space in town.

AMY GOODMAN: Can you talk about who is bringing this case — for example, Roberta Kaplan, who you've called the attorney general for the resistance, and Integrity First for America?

DAHLIA LITHWICK: Integrity First for America is a group that was created to help fund the trial. And I should note that Karen Dunn and Robbie Kaplan — I think you had Karen in the intro — are the two lead lawyers, and then there's a team around them. And I think that, again, they felt that they had to stand up and do this when nothing else was being done.

And what they are doing, essentially, is saying, "If this can be done here, we can see this done" — for instance, we're seeing the KKK Act now has been invoked against some of the January 6th rioters from 2021. So, they really feel as though this is an old statute that is still really on point in this moment of rising white supremacy, anti-Black hate, antisemitism. And so, I think that what they're trying to do, Robbie and Karen would say, is to create a roadmap through how we hold very violent, racist, quote-unquote, "protesters," who intend to bring mayhem — how we hold them to account.

AMY GOODMAN: You have this going on in Charlottesville, and in Washington, D.C., you have the congressional select committee that is investigating whether it's a conspiracy of high-level Trump people, including President Trump, congressmembers, lawyers like Giuliani and Eastman — a gathering of Giuliani and others at the Willard Hotel nearby — to coordinate what ultimately became this white supremacist violent attack on the Capitol. Can you talk about that and how these two relate?

DAHLIA LITHWICK: Yeah, it's interesting. You know, all of the folks who are on the hook for these conspiracies keep invoking that they were just speaking, they were just floating ideas. But any conspiracy, at some level, involves speaking, right? If there's a conspiracy to rob a bank, you can't say, "Oh, I was just exercising my free speech right to ask someone to bring a getaway car." And so, in a sense, I think the lie is anything is protected, any speech is protected. John Eastman's memo explaining to then-Vice President Pence how to do a coup is just a sort of free-floating, you know, playing around with constitutional ideas. No. If you are in agreement with a bunch of people to break the law, that's a conspiracy. And that's not protected speech. It's not protest.

And so, I think what you're going to see in all of these cases is attempts to say that each of the players, in both situations, both in Charlottesville and on January 6th, were not intending to have people come and kill people, hurt people, dress in Kevlar vests, carry weapons of war; they were just trying to have a protest, and it got out of hand, and maybe we should blame the police, or maybe we should blame the counterprotesters. But in both cases, I think, really, it puts the lie to the notion that any and all speech that is done in order to further a conspiracy to hurt people is protected speech.

And so, I think, in some sense, the conspiracy claim helps get you over the argument that this is just sort of idle chatter, and puts you squarely into the realm of, once you are plotting to do violence, to have a coup, in one case, to have a violent, antisemitic, anti-Black mob riot and hurt people, you're out of the world of "this is a peaceful protest" and into the world of conspiracy to do harm.

AMY GOODMAN: It is amazing to see all of these issues now in various levels of court or in Congress. I want to also go to Kenosha, Wisconsin, where the judge overseeing the murder trial of Kyle Rittenhouse has ruled that the three protesters that this white teenager shot, two of them killing them, during racial justice protests last year cannot be called "victims" during the trial, only "rioters," "looters" or "arsonists," if the defense can provide evidence to justify such terms — again, two of the protesters, Anthony Huber and Joseph Rosenbaum, were killed by Rittenhouse. this trial beginning next week. Can you explain?

DAHLIA LITHWICK: To be fair, the judge in that case, this is an ongoing policy. He has a long-standing policy. He says that you can't call someone a victim until the crime has been proven. But you're quite right, Amy, in that it goes exactly to the language of what is neutrality. The judge in that case said the word "victim" is too inflammatory. We don't want to inflame the jury. Apparently, the words "arsonist" and "looter" and "rioter" are not.

And we're seeing exactly the same dynamic playing out in jury selection — we're on day three now of jury selection in Charlottesville — where the language of neutrality, the language of "we want to just have an even playing field," "we want people to have open minds," means that potential jurors who say things like "I thought they were evil," "I think Nazis are evil," those kinds of people are bounced because that's not neutral language.

And in some sense, what it tells me, in both of these instances, is that the framing of being sort of open-minded and neutral — in one case, about somebody who armed himself with a gun and went to kill antiracist protesters; in another case, people who came to a town with the intention up saying "Sieg Heil," "blood and soil," "burn the synagogue down" — that the appropriate way to judge them is with this neutral language of "both sides." And it's chilling that that's what the legal system requires, that that's viewed as a sort of neutral, objective setting.

AMY GOODMAN: Dahlia Lithwick, I want to thank you for being with us, Slate.com senior editor and senior legal correspondent, longtime resident of Charlottesville, for 18 years, lived there at the time of the Unite the Right rally, riot in August 2017.

Coming up, we look at a pair of hunger strikes being held by taxi drivers in New York and climate activists in Washington, D.C. And then we speak to Steve Donziger, the environmental attorney who is headed to jail today. Stay with us.