Civil trial begins over deadly 2017 Charlottesville rally, which jolted U.S. awake to an existential threat festering online

Opinion

Hey there, time traveller!
This article was published 26/10/2021 (1157 days ago), so information in it may no longer be current.

It’s the First Amendment (1791) v. the Ku Klux Klan Enforcement Act (1871) in a Virginia courtroom (2021).

Freedom of speech, most precious to America, v. an obscure Reconstruction era statute designed to prevent the Klan from denying post-Emancipation Black people their civil rights — allowing freed slaves to sue when they’ve been injured by conspiracies. That legislation was profoundly effective in dismantling the KKK network by basically bankrupting them.

But the Klan didn’t stay dead, of course. And the white supremacist neo-Nazi ganglion is arguably more potent now than it’s been in a century.

They were there, all the bad actors of the execrable far right, on Aug. 12, 2017, with their tiki torches and their swastikas and their weapons, descending on Charlottesville, Va., on the second day, the cranked-up violence day, of a Unite the Right rally, ostensibly to protest the removal of a statue of Confederate general Robert E. Lee.

Two and a half years before the roiling American underbelly of maddened malevolence that culminated with the storming of the U.S. Capitol in January, a nation was jolted awake to the existential threat of a movement that had been festering on social media, in radical right chat rooms, online hate hubs and extremist militias, emboldened to come out into the open by president Donald Trump.

The case is expected to turn on the central question of conspiracy: That the mob gathered at the University of Virginia, strutting across the campus, clashing with counterprotesters, had planned the confrontation in detail, with intent to incite violence, threaten, intimidate and harass civilians, particularly racial, ethnic and religious minorities. Their aim, according to the civil law suit, was to ignite a race war.

“Defendants brought with them to Charlottesville the imagery of the Holocaust, of slavery, of Jim Crow, and of fascism,” read the complaints filed by plaintiffs. “They also brought with them semi-automatic weapons, pistols, mace, rods, armor, shields and torches.”

As other crises have unspooled amidst a cultural war and a societal reckoning, many have probably forgotten the horrific event in Charlottesville, when a white nationalist plowed his vehicle into a group of peaceful counterprotesters, killing 32-year-old Heather Heyer and injuring dozens of others as bodies flew into the air. James Fields, who pleaded guilty to 29 federal hate crimes — a plea agreement that avoided the possibility of a death sentence — was convicted of first-degree murder in 2019, sentenced to life plus 419 years. U.S. courts don’t pussyfoot around.

There have been few criminal convictions, however, arising from an episode which Trump immediately afterwards described as having “some very fine people on both sides.”

Thus the civil suit against two dozen defendants — some of them boldface white supremacists, among the country’s most notorious racists — and hate-mongering organizations such as the Daily Stormer website, the neo-Nazi National Socialist Movement, the League of the South and two KKK chapters. Several have already been de-platformed by social media companies.

The suit has been brought by nine plaintiffs representing a cross-section of society including an ordained minister, an African-American landscaper, a multiracial paralegal and several students. The defendants will argue that violent rhetoric is protected by the First Amendment — free speech; that their rally had proceeded with a legal permit; and that the ensuing chaos was the fault of law enforcement failing to keep the colliding sides apart.

They’d chanted: “Jews will not replace us!” and “Blood and soil!” — English translation of Nazi Germany’s Blut und Boden — “White Lives Matter!”, “The South will rise again!”, “Jews are Satan’s children!” And “Hail Trump!” Or maybe that should be Heil Trump. The 600-or-so protesters barked liked dogs, delivered Nazi salutes and made monkey sounds towards Black people.

“There is one thing about this case that should be made crystal-clear at the outset — the violence in Charlottesville was no accident,” the federal lawsuit argues.

The jury-trial has spent the past two days in jury selection. Opening arguments had been scheduled for Wednesday but a full jury had yet to be empaneled. (On Tuesday, a potential juror was struck because he offered his opinion that fascism is “bad,” reported one journalist.) Some of the defendants are representing themselves, which puts the plaintiffs in the awkward position of being questioned directly by the people they’re suing. Several have outright refused to comply with disclosure orders by destroying their phones and wiping their computers, which won’t actually foil tech sleuthing.

The 19th-century law that went a long way toward gutting the KKK has been resurrected with the amorphous online world square in its crosshairs. Building a case against their modern-day descendants and abominable allies won’t be easy. Lawyers must establish a link between the violence expressed in an individual’s words and the violence committed by a mob. Plaintiffs’ lawyers say the paper trail is overwhelming, though, claiming they’ve amassed 5.3 terabytes of digital communications among the defendants — including a trove leaked from the messaging platform Discord — that will show they’d plotted and prepared for a bloody attack. Among the alleged postings: “I’m ready to crack skulls.” Participants allegedly bragged widely online before and after the event about the violence instigated.

Defendants used the internet, as per the lawsuit, to “solidify a stable and self-sustaining counter-culture.”

The KKK Act has mostly lain dormant in the last century but there have been a handful of applications and successes, such as the awarding of $535,000 to a group of women injured when Klansmen drove through a Black neighbourhood in Chattanooga in the ’80s. The Southern Poverty Law Center utilized the strategy to win $7 million in 1987 for a Black teenager killed years earlier, which drove an Alabama Klan organization into bankruptcy. More recently, the NAACP last December filed a suit accusing Trump and the Republican Party of violating the act by trying to disenfranchise Black voters in Michigan. Just a couple of months ago, seven U.S. Capitol police officers sued Trump and his long-time adviser Roger Stone utilizing the statute, claiming they’d conspired to use violence on Jan. 6 in an attempt to prevent Congress from certifying the presidential election result.

This suit is being largely funded by a non-profit, Integrity First For America.

Roberta Kaplan, lead lawyer for the plaintiffs and well-known for Supreme Court arguments that were instrumental to federal recognition of same-sex marriage, told the Washington Post of applying the KKK Enforcement statute: “We had no idea when we brought this case that there was going to be somewhat of a renaissance to the KKK Act.

“Sadly, that’s just a testament to the fact that we have a situation in our country where people can credibly accuse others of committing the kind of act that Congress was worried about after the Civil War.”

Rosie DiManno is a Toronto-based columnist covering sports and current affairs for the Star. Follow her on Twitter: @rdimanno