Charlottesville civil trial will explore where free speech becomes conspiracy to commit violence

By Elle Reeve, CNN

About 9 p.m. on August 11, 2017, several hundred White supremacists, mostly young men, held tiki torches as they formed a line that snaked across Nameless Field at the University of Virginia in Charlottesville.

Though they came from across the country, they’d organized in online chat rooms. White vans dropped them off. There was a security team, and a list of chants prepared.

At the signal, they lit the torches. The tiki torch guys marched across campus, chanting “You will not replace us,” then “Jews will not replace us,” then guttural grunts and shouts. The spectacle kicked off a weekend of violence that was supposed to be the climax of what the alt-right called “The Summer of Hate.”

There were few consequences for the organizers until a federal civil lawsuit known as Sines v. Kessler was filed a couple of months later. It alleges the organizers conspired to commit violence motivated by race. The trial begins this week.

The plaintiffs include several Charlottesville residents who say they were hurt in the events around the Unite the Right rally. The 10 are seeking compensatory and punitive damages for their injuries and to deter similar events.

They are represented by a large team of powerful lawyers under the umbrella of the non-profit Integrity First for America.

The defendants are many of the brand names of White power, often derisively called “e-celebs” by their own followers. Among them are Richard Spencer, Christopher Cantwell, Jason Kessler, Elliot Kline, Nathan Damigo, Matthew Heimbach, Jeff Schoep, Andrew Anglin and others. Their lawyers have less notable resumes, and some are representing themselves.

The case will show where constitutionally protected free speech stops and violent organizing begins in the era of social media. Whatever the outcome, the evidence expected to be presented by the plaintiffs may provide a deeper understanding of how a mass of supposedly ironic internet racism was channeled into a violent mob in 2017.

The internet made the alt-right, but in this lawsuit, it is also their undoing. The social media companies that let them frictionlessly spread their propaganda and organize their spectacles have complied with the plaintiffs’ subpoenas for the digital records of that very same propaganda and organizing. Memes are now evidence.

“The violence was planned in these closed Discord chats, where they discussed everything in advance — from what to wear, what to bring for lunch, how do you best sew a swastika onto a flag, how do you use free speech instruments to attack people,” Amy Spitalnick, executive director of Integrity First for America, the group representing the plaintiffs, told CNN. “That is a racially motivated, violent conspiracy. And that’s not anything that’s protected by the First Amendment or by any other sort of right that people have.”

(Discord is a social media site popular with gamers that allows text and voice chat.)

The defendants say they were engaging in their First Amendment right to protest, that there was no conspiracy, and that the violence was the result of police failing to keep them separate from counterprotesters.

“White nationalists conducting a legally sanctioned rally with a permit make for odd conspirators. What if nobody bothered to counterprotest? Who would their intended targets then be?” Edward ReBrook, a lawyer for defendants Schoep, Heimbach, and Matthew Parrott, told CNN. “As conspiracies go, this one seems to have required a number of elements they couldn’t control.”

Richard Spencer and Chris Cantwell, two of the most high-profile defendants, are representing themselves. Spencer told CNN this was “vital” because it would let him “speak directly to the jury.” (Lawyers for the other defendants have signaled they do not fully agree. When a potential juror said he couldn’t be impartial because he thought the defendants were “evil,” Spencer did not want to dismiss him, saying he’d been called evil before. Another defense lawyer complained to the judge, “I have no idea what these two think they’re doing. That juror should be excused.”)

Spencer said the plaintiffs had to prove he was part of a conspiracy. “They will fail to prove that I had any contact whatsoever with most other Defendants,” Spencer told CNN in a text. “I had never heard of most of them, and there exists no evidence to the contrary. I never took part in the planning or discussion forums on Discord. If the Plaintiffs simply want to argue that Spencer is a ‘bad guy’ or ‘has bad ideas,’ they will fail to clear the obstacle of a ‘preponderance of evidence’ needed for the application of the aforementioned laws.”

Spencer does not appear to participate in the Discord chats in which Unite the Right was organized. But text messages in a plaintiffs’ trial exhibit list do show him talking about planning the event with other organizers, such as Kessler and Kline, also known as Eli Mosley. The texts are an example of how the plaintiffs’ evidence offers some broader insight into how the alt-right organized. Some undated messages included in the document:

• Kessler to Spencer: “We should speak on Sunday (later today) about how to prepare for Aug 12th. Using middlmene (middlemen) all the way through isn’t going to work. We need to roll up our sleeves.”
• Kline to Spencer: “Just got off the phone with Kessler and the ACLU …”
• Kline to Kessler: “I’ll call you tonight right after my call with Nathan and Spencer.”
• Spencer to Kline: “Also, if he thinks that my – and yours and everyone’s – strategy in Cville was wrong, them talk to me about it.”
• Kessler to Spencer: “We’re raising an army my liege. For free speech, but the cracking of skulls if it comes to it.”

The conflict between the plaintiffs and defendants in this lawsuit is the conflict at the heart of the First Amendment, Mary Anne Franks, a law professor at the University of Miami, told CNN.

“If you’re saying organized violence, on the one hand, is not protected by the First Amendment, but speech that does talk about violence is protected — there’s obviously going to be a question of where along that spectrum can you say the law should step in or the First Amendment doesn’t protect you?” she said.

There has to be a point where we can say speech crossed a line before someone dies, Franks said. So where is that line? While incitement is not protected by the First Amendment, the courts haven’t offered much guidance on what incitement is in the age of the internet and social media.

With Charlottesville, Franks said, “You have this vast network that went into pulling those people together, and giving them a common cause and purpose, and then they descend upon a town and they’re allowed to essentially do whatever they want,” Franks said. “Foreseeable violence then erupts. … So I think what it tells us is you have to understand the nature of internet communication and how much that changes the nature of incitements.”

Creating consequences

This is a civil trial, not a criminal one. The plaintiffs are private parties, not the government, and what’s at stake is money, not prison time.

Kaplan said that as she watched news coverage of Charlottesville in 2017, “I was very, very worried that then-Attorney General Jeff Sessions would not do what needed to be done, at least as comprehensively as I thought, because he didn’t have a terrific record on civil rights. So I thought, ‘OK, well, I’ll do it.'”

The Southern Poverty Law Center crushed the Ku Klux Klan with lawsuits in the 1980s, Spitalnick said, and cases like Sines could be a powerful tool in disrupting these kinds of groups financially and operationally, as well as “hopefully deterring others who see the consequences for this sort of violence.”

In court documents, the plaintiffs have indicated they will be using footage and stills from the 2017 Vice documentary, “Charlottesville: Race and Terror.” In that video, I interviewed defendant Chris Cantwell, surrounded by a semicircle of his fans he’d brought together through his Listserv.

Cantwell had told me before the Unite the Right rally that the alt-right planned to imitate the tactics of the civil rights movement in the ’60s to make themselves look like nonviolent activists oppressed by the state. But days later in Charlottesville, surrounded by his followers, Cantwell made the kind of inflammatory comments that made his fans love him, such as, “I’m trying to make myself more capable of violence.” Or later, while walking beside fellow defendant Robert “Azzmador” Ray, “We’re not nonviolent. We’ll f**king kill these people if we have to.”

A year later, in 2018, Cantwell told me the alt-right was unable to hold public demonstrations anymore, “and that is largely due to Charlottesville.” He said the Sines lawsuit was “pretty central to the problem.” He’d gotten a notice from Discord that the Sines plaintiffs had subpoenaed his records, he said, and the social media company would not fight the subpoena.

Of the purpose of the lawsuit, Cantwell said, “They want information, and it has a lot more to do with gathering information and to recovering damages.” When asked why he thought they wanted that information, Cantwell responded with an anti-Semitic joke.

In some ways, the plaintiffs have already won. Spencer stopped his public speaking tour and has called the case “financially crippling.” Schoep and Heimbach have renounced White supremacy and stopped organizing White power activity in public.

Schoep gave the group he led for more than two decades, the National Socialist Movement, to a Black civil rights activist who died shortly thereafter. Identity Evropa, one of the groups named in the suit, rebranded under a new name twice before disbanding.

Cantwell is in prison for extortion and threat charges in an unrelated case. (He threatened to rape a White supremacist’s wife if he did not hand over identifying information about a third White supremacist.)

Jason Kessler tried to hold a Unite the Right sequel in Washington, DC, in 2018, and about two dozen people showed up.

Ray and Anglin have failed to appear in court. A default judgment has been entered against Anglin and his LLC, as well as four groups and Augustus Sol Invictus, who was arrested for stalking in Florida last year.

Whose free speech?

On the morning of the rally, militia groups, including the Three Percenters, wore uniforms and carried rifles. Christian Yingling, of the Pennsylvania Light Foot Militia, told me they were not White supremacists, but they were there to protect everyone’s right to free speech. But they’d lined up around the park with their backs to the White supremacists, and their guns facing outward toward the counterprotesters.

“That’s a very telling illustration of what many people mean when they say, ‘We’re just here to defend the First Amendment.’ They mean that they’re there to defend the First Amendment for people like them,” Franks said. “They don’t mean that they’re actually invested in free speech for marginalized communities — for women, for non-White men. They mean that they think those First Amendment rights really are the birthright, to some extent, of White men.”

White supremacists understand that while it’s hard to get support for their ideas, it’s much easier to get support for their right to express them. When the city of Charlottesville revoked Kessler’s park permit before Unite the Right, the ACLU of Virginia helped him get it reinstated. Afterward, the ACLU had to reckon with what kind of cases it should take.

Going back to the proposed neo-Nazi march in Skokie, Illinois, in 1978, when the ACLU defended their right to protest, White supremacists have become First Amendment heroes for people who would otherwise find them abhorrent, Franks said.

“There’s this really unfortunate conflation of two things: being really disliked and controversial, and being vulnerable,” Franks said. “And what the civil libertarian ideology tells us is that those two things are always the same. But if we actually look at who has power in our society — what kinds of ideas are actually animating so much of our society — White supremacy isn’t at the margins of that. It’s at the center of that.”

Local activist says, ‘We told you’

Tanesha Hudson, an activist born and raised in Charlottesville, got to the protest site early the morning of August 12, 2017. She stood with religious leaders on the street by the park, and as the alt-right began to walk by with their flags, she said they started hitting the counterprotesters in the head with flagpoles. She still has a scar. She says she told police, who did not intervene.

“I probably could have literally kicked one of their asses that day, all day, that day,” Hudson said. “But if I put my hands on them, I’m going to jail. But they did it all day. And they got to go home free.

“So, is it free speech? Or is there two different types of policing? Is there Black policing, and is there White policing?”

For all the attention Charlottesville got after 2017, Hudson said, it hasn’t changed the system built to benefit White men. As an example, she pointed to turnover among Black leaders in city government, like RaShall Brackney, the first Black woman to serve as police chief who dissolved the SWAT team over accused misconduct, and was fired in September by the city manager. The first Black female mayor, Nikuyah Walker, said that led to her decision not to run for reelection.

Hudson said people intuitively understand that system and whether they benefit from it.

“When I saw that insurrection, it just made me feel like, ‘Oh, wow, look at this. When (President Trump) said that there were ‘good people on both sides’ — some of y’all believed him. But now that it happened at the Capitol, it’s, ‘Oh, my goodness, they need to go to jail!’ Well, we told you they needed to go to jail here, and they didn’t go to jail.

“Charlottesville could have done the right thing and made such a big statement. And they didn’t. Charlottesville failed us. And then after Charlottesville failed us, our president failed us.”

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