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. Jason Kessler, who was the main organizer of the event, and Richard Spencer (a white nationalist who spoke at it) are the defendants. James Alex Fields, Neo-Nazi Neo Nazi, was sentenced to life in prison for the attack on Heather Heyer’s car that he smashed into a crowd protesters. Plaintiffs in the case point out the serious damage done by the deliberate planning they made in online chatrooms. We examine the case details 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.”
This is a rush transcript. Copy may not be final.
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 poured into the city, including students, clergy, and activists with Black Lives Matter. Witnesses report that police did not intervene in fights.
James Alex Fields, a self-described neo Nazi, drove into a crowd antiracist counterprotesters at 1:45 on that day. Heather Heyer was killed and at least 35 others were injured. Fields was later sentenced for life in prison.
Jason Kessler, who was the main organizer of the violence in Charlottesville, and Richard Spencer, a white supremacist, are the two people being charged in the civil trial. Spencer spoke at the event. The civil lawsuit refers to an 1871 law, the Ku Klux Klan Act. This law allows private citizens to sue others for civil rights violations. Elizabeth Sines, one plaintiff in the case, speaks about what she saw.
ELIZABETH SINES: Those two days will forever be part of my life. I will never forget watching the Nazis march on the campus I called home. I will never forget seeing them attack my fellow students or the feeling of running for your life on streets I had walked with friends and acquaintances many 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 civil rights group Integrity First for America filed this lawsuit. A large part of the case is based upon a long paper trail left behind in online chatrooms by organizers for Unite the Right. One of the plaintiffs’ lawyers, Karen Dunn, told CNN What stood out to her most in the documents
KAREN DUNN: One of the Discord post photos is the image that has stayed with me since the beginning of this case. 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 there during the Unite the Right riot of 2017.
Dahlia, welcome back to Democracy Now! This is a very unusual court case. The jury selection continues. Could you please explain more about the case?
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. The Justice Department did not do that. Trump stated at the time that there were very fine people on both side of the 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 find out who your funding sources were. 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: Now, let’s clarify who 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. There is a dollar amount that has not been identified yet. Judge Norman Moon can determine the amount of damages.
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. Some of these defendants were already convicted for not participating in the trial. Some of them haven’t shown up. Both Spencer and Chris Cantwell are defending themselves; they don’t have attorneys. This brings us to this motley crew, which included defendants at different levels.
You also mentioned that there is 5.3 terabytes digital evidence that shows that they planned what to wear and what items they could use to make weapons weeks in advance. As you mentioned, they were talking about what it means to hit someone with their car and what the law says about protecting you.
This is a way to get everyone together to tell the full story. The judge will then find money damages. The long-term goal is to bankrupt the organizations.
AMY GOODMAN: And how can you answer the question of white supremacists such as Richard Spencer who are claiming that this is an attack upon freedom of speech?
DAHLIA LITHWICK: That’s always been their defense. They have two claims. The first is that it was a peaceful march. They came to protest. This is the core First Amendment right for them to assemble, and the core First Amendment Right to Protest.
It became clear that people were coming in full body armour with flaming torch and other weapons of war, which made it a protest. In some ways, I believe the argument is that if people brought guns to the event, then they lost the right not to call it a peaceful march.
Now, Richard Spencer and his colleagues are saying that’s the police’s fault. They cite a report, an extensive report, that was published after August 12th. It stated that the police presence in Charlottesville and Virginia was lackingluster. 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 was established to 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. They felt that they had no other choice but to do this.
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 Some of the January 6th rioters in 2021 have been subject to Act Now. This makes it seem like an old statute that is still relevant in this time of rising white supremacy and anti-Black hatred, antisemitism, and 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 more about that and how these relate to each other?
DAHLIA LITHWICK: Yeah, it’s interesting. All of those who are being held responsible for these conspiracies keep invoking the fact that they were simply speaking and that they were just expressing ideas. Speaking is part of any conspiracy. 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. In both cases, it disproves the notion that any speech used to further a conspiracy against hurting 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 these issues at different levels of court or 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 will begin next week. Can you please explain?
DAHLIA LITHWICK: To be fair, the judge in the case said that this was an ongoing policy. He has a long-standing practice. 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, thank you for being here, Slate.com senior editor, senior legal correspondent. Dahlia has been a Charlottesville resident for 18 years and was there during the Unite the Right protest, riot in August 2017.
Next, we’ll be looking at two hunger strikes being held in New York by taxi drivers and climate activists. Finally, we’ll talk to Steve Donziger, who is going to jail today as an environmental lawyer. Stay with us.