POLITICS
A 19th-Century Law Dismantled The KKK. Now It
Could Bring Down A New Generation Of Extremists.
In a Virginia courthouse this week, a historic trial
will begin that aims to unravel the real motivations of the far-right activists
behind the 2017 Charlottesville riot.
By
Lyz Lenz
10/24/2021
08:00am EDT | Updated October 25, 2021
It doesn’t
take much to build a white nationalist. One angry man. Access to social media,
maybe a Discord account. The ability to instantaneously connect with other
far-right internet dwellers, until he’s replicated himself a thousand times
over ― a hunched mass of white nationalists and Nazis, their faces aglow in the
light of computer screens.
Enough
followers confers a kind of legitimacy. The media pay attention, often giving
the extremist the benefit of the doubt and encouraging the readers to
understand where they’re coming from. More so if he uses big words like
“identitarian,” and if he wears ties and speaks politely about the rise of the
white race. He’s called dapper. People will write profiles.
It takes so
much more to break such a man down, to disassemble him and the world of
violence he created. It’s harder still to sift through the constant cycle of
violent memes, chat logs, message boards, emails and nameless, faceless
generators of hate in order to hold specific people accountable for what others
do with that hate offline.
But that’s
exactly what the nonprofit civil rights group Integrity First for America and
the lawyers at four civil rights law firms are trying to do with the landmark
Sines v. Kessler case, which goes to trial on Oct. 25 at the United States
District Court, Western District of Virginia in Charlottesville.
The case is
a sweeping attempt to use the KKK Act of 1871 to dismantle this amorphous
online world and implicate its members in the August 2017 violence at the Unite
the Right Rally in Charlottesville, Virginia. It’s a civil case, seeking
damages for not only physical violence and violations of civil rights, but the
emotional violence of online and physical harassment that began before the
rally and has continued long after.
The case
has nine plaintiffs, all residents of Charlottesville who counterprotested at
the rally. Elizabeth Sines, whose name the case carries, joined the suit
because of the emotional trauma she suffered as a witness to the violence.
Others, such as Marcus Martin, Natalie Romero and Chelsea Alvarado, were
severely injured. Plaintiff Hanna Pearce joined because a picture of her and
her son was posted on the neo-Nazi news site The Daily Stormer.
There are
24 defendants. Some of them are names you probably know already, like Richard
Spencer, president of the white nationalist conspiracy group National Policy
Institute, or Charlottesville’s hometown racist, Jason Kessler. Others you may
not know by name, but may have heard of their groups: Identity Evropa, League
of the South, the Loyal White Knights of the Ku Klux Klan. All are accused of
organizing a motley collection of white supremacists into a violent mob.
The events
of Aug. 12, 2017, really started back in February, when the Charlottesville
City Council voted to remove a statue of Robert E. Lee. In March, Virginia’s
Sons of Confederate Veterans filed a lawsuit attempting to prevent the statue’s
removal. On May 13, Kessler and several of the other defendants organized a
protest, carrying tiki torches and standing around the statue shouting “You
will not replace us.” Several residents showed up to counterprotest. In social
media posts, Kessler called the May rally the beginning of a “cultural civil
war.”
On July 18,
the Loyal White Knights called another rally. Fifty of them marched in the
streets, shouting “white power” and carrying signs that read “Jews are Satan’s
children.”
“#UniteTheRight
against these shitlibs in Charlottesville on August 12 is going to be so much
fun. You’ve got a month to be there,” Kessler tweeted.
For the
entire summer, Charlottesville residents had been threatened and harassed.
White supremacists wore swastika symbols and chanted Nazi slogans in streets.
Counterprotesters reported getting phone calls from white supremacists and
receiving online harassment after their pictures and home addresses were posted
on Discord and Twitter. Stores and restaurants that posted signs showing support
for diversity were mailed threats: “Death to all black devils” and “Heil
Hitler” and “Go Donald Trump!”
When around
600 of them showed up on Aug. 12, the town was primed for an explosion. They
yelled Nazi chants and lifted Nazi salutes and insignia. They barked like dogs
and made monkey sounds at Black counterprotesters. They marched the streets,
many of them armed with guns and wearing body armor. But so many more just
dressed not in military cosplay, but as themselves: white men in khakis and
white polo shirts.
They didn’t
have to hide. Reporters milled around pushing microphones into mouths as they
declared, “Our country has been usurped by a foreign tribe called the Jews.”
Tension
built throughout the day, until 1:40 that afternoon ― when James Alex Fields
Jr. drove a car into a crowd of counterprotesters, killing Heather Heyer,
injuring several others, and inscribing Charlottesville on the American
consciousness as a symbol for hate, fear and violence.
“Would you like to sue some Nazis?”
Robbie
Kaplan, a co-founder of Kaplan Hecker & Fink, was watching the rally on CNN
from her new law firm in New York. She’d just opened the offices and they
didn’t have much furniture. So they set up card tables, and about five or six
of them were sitting around eating pizza while they watched. Screening the
rally like a movie was a mistake, she admitted to me in a phone interview.
As the
violence unfolded, a paralegal started crying and left the room.
Kaplan
remembers thinking to herself that then-Attorney General Jeff Sessions might
not do anything about the violence. But she thought maybe she could.
Kaplan
called Karen Dunn, a litigator who specializes in conspiracy cases. She is a
partner at Paul Weiss and a former federal prosecutor in Virginia.
“Would you
like to sue some Nazis?” Kaplan asked.
“Of
course,” Dunn replied.
Kaplan,
whose firm is also representing E. Jean Carroll in a defamation suit against
Trump and recently stepped down from the board of Times Up after a report found
that she had a role in an effort to discredit one of Gov. Cuomo’s alleged
victims, also called journalist Dahlia Lithwick, who had been a resident of
Charlottesville.
Lithwick
put Kaplan in touch with some community leaders and 72 hours later, Kaplan and
Dunn were in Charlottesville meeting with the people who would eventually
become plaintiffs in the civil lawsuit against the organizers of the rally.
The rally
was over by the time Kaplan and Dunn arrived on Aug. 15, but white vans filled
with rally attendees were still driving through the streets. The town, Kaplan
recalled, was in a state of shock. People were scared. But Kaplan and Dunn told
them they could do something ― that there could be justice.
They began
to gather plaintiffs, eventually getting to the nine named in the civil suit.
But
building a case against white supremacists is tricky. There needs to be a link
between the violence of an individual’s words and the violence of a mob’s
actions. I once took pages and pages of printouts of tweets and emails and
screenshots of message boards to the FBI. The messages showed pictures of a
house where I had formerly lived along with the address. The people sending the
messages noted they had guns and pipe bombs. The FBI officer told me that they
weren’t threats. Not exactly. Saying you have a gun and live nearby is one
thing. Saying you will shoot someone is another. It’s a semantic difference
between words and violence. He told me only one rose to the level of a threat.
His advice: Go ask the police to drive by your house. I did, but I didn’t ever
feel safe. Not ever again.
Online
white supremacists are good at the dance of word and meaning, which offer the
cover of plausible deniability. When I interviewed Spencer in November 2018 for
a story about his divorce and his wife’s allegations of abuse, I brought up
Charlottesville, and the link between the violent ideology of ethnic cleansing
and the violence at the rally. He was defensive. “Oh, so I created violence by
my ideas? ... Did I have any connection whatsoever with anyone who engaged in
violence at Charlottesville or anything like that?”
It’s a
non-denial denial. A threat that’s not a threat.
To build a
case, Kaplan, Dunn and their teams of lawyers would have to make the link
between the words of white supremacists and the violence of Aug. 12 very clear.
And they would need help.
In that
regard, they have the benefit of an online trail. In the days after the rally,
when the lawyers were still on the ground meeting with residents, the website
Unicorn Riot leaked over 1,000 screenshots of chats and hours of audio files
from the Discord server where Spencer, Kessler and so many others had planned
the Unite the Right rally.
And in an
interview with CBS filmed a day before the rally, Kessler had told Katie Couric
that the protests would not be violent. But in the chats, rally organizers
actively planned for violence. In one discussion, Kessler detailed a strategy
to provoke antifascist protesters and then make it appear as if they were the
instigators. The chats show them planning for and arming themselves for
violence.
It was
exactly what Dunn and Kaplan and their teams needed. It took days for the
swiftly assembling legal team, which now included lawyers from two other firms,
Cooley and Woods Rogers, to comb through the leaked chats and put together a
timeline, but eventually a case formed. Dunn and Kaplan sat up late in their
Charlottesville hotel room, writing the 111-page complaint.
The
complaint, filed on Oct. 17, 2017, reads like a legal thriller. It introduces
both the plaintiffs and the defendants, and walks through the chronology of the
events in Charlottesville to demonstrate that the violence was not an anomaly,
but part of a planned, coordinated and focused attack.
Reading the
complaint is like flipping over a log and seeing the bugs in the dirt. Whatever
veneer of credibility, whatever polite talking points the organizers gave to
the media, however much they smiled and however many ties and suits they wore —
what the discovery process revealed was the true ugliness and rot beneath.
“There are
a lot of tactics that are very similar to tactics that have been used in the
white supremacist movement for decades: creating plausible deniability, talking
in code, claiming self-defense when you’re provoking violence, for example,”
Dunn explained. “They try to be one thing in public, and a different thing in
private. But I think when you can juxtapose their public persona with their
private communications, it’s clear what’s going on.”
Dunn and
Kaplan both promised that the trial would be filled with other evidence besides
the Discord chats, such as communication from the personal devices of the
organizers and even former KKK leader David Duke.
But getting
that private communication has been difficult. Amy Spitalnick, executive
director for Integrity for America, the nonprofit helping to fund the lawsuit,
explained that the hardest thing about suing white nationalists was gathering
the evidence. Many of the defendants refused to comply with requests for
records during the discovery phase and actively destroyed records. The judge
has had to order defendants to hand over their electronic devices and several
have been sanctioned for failing to comply. Robert “Azzmador” Ray was
sanctioned and now has a warrant out for his arrest on contempt charges. Duke
was forced to hand over his electronic devices. Spitalnick estimates that the
legal team has 5.3 terabytes of digital evidence in this case.
Dunn
credits Jessica Phillips, a partner at Paul Weiss, who worked to secure
sanctions against two key defendants. One is Elliot Kline, who faked being a
combat veteran to rise in the ranks of the white supremacist movement, becoming
a member of the Proud Boys and eventually the head of Identity Evropa. Also
named is Ray, a high-profile extremist from Texas who contributes to The Daily
Stormer.
Ray is on
the run after facing criminal charges for illegally using pepper spray at the
rally. The court sanctioned both men for failing to produce evidence and
participate in the discovery process. So in the fall of 2020, the plaintiffs
filed two separate motions for sanctions against Kline and Ray. As part of the
sanctions against Kline, the judge will instruct the jury to treat as
established fact that Kline was part of a conspiracy to engage in racially
motivated violence.
The
sweeping nature of the lawsuit has the potential to set a new precedent and has
captured the attention of lawyers and civil rights advocates. “Will the courts
in this country allow local communities to defend themselves in court?” said
Eric Ward, executive director of the civil rights nonprofit Western States
Center. “It gets those who intentionally seek to bring and inject organized
bigoted violence into the communities.”
The KKK Act
The case is
one of the broadest attempts to go to trial under the Ku Klux Klan Act of 1871.
President Ulysses S. Grant asked for the law after the rise of the KKK
following the Civil War, and it was passed within a month with broad support.
The law targeted Klan activity, making it illegal to use force, intimidation
and threats to prevent people from voting, serving on a jury or testifying in
court. The law specifically makes it illegal to “go in disguise upon the public
highway or upon the premises of another” and allows victims to sue perpetrators
in civil court.
Grant’s
administration then used it to almost completely dismantle the KKK in America
for years, bleeding them dry with civil suits.
Ward points
to a 1988 case brought under the KKK Act, Berhanu v. Metzger, as a model of
civil litigation for Sines v. Kessler. Three Portland skinheads trained by the
White Aryan Resistance (WAR) murdered Mulugeta Seraw, an Ethiopian student.
After his murderers were convicted, the Southern Poverty Law Center filed a
civil suit against Tom and John Metzger, who ran WAR, claiming they were just
as responsible for Seraw’s murder. The case was filed on behalf of Engedaw
Berhanu, a representative for Seraw’s family. In 1990, a jury agreed and
awarded Seraw’s family $12.5 million in damages.
After lying
dormant for several years, the KKK Act is currently being used to sue
conspirators in the Jan. 6 Capitol riot, and in December 2020, the NAACP filed
a lawsuit against Donald Trump and the Republican Party under the act, alleging
that they conspired to interfere with the voting rights of Black Americans in
Michigan.
Filing a
civil suit is one of the few tools for victims of today’s white nationalist
movements to seek justice. Spitalnick pointed out that perpetrators don’t usually
go around wearing hoods and lighting crosses. Instead, they gather and organize
online, where it is easier to organize and hide.
But
right-wing violence is at an all-time high in America, according to a
Washington Post analysis of data from the Center for Strategic and
International Studies. “Since 2015, right-wing extremists have been involved in
267 plots or attacks and 91 fatalities, the data shows,” they found. “At the
same time, attacks and plots ascribed to far-left views accounted for 66 incidents
leading to 19 deaths.”
Sines v.
Kessler matters, because, as Kaplan pointed out, it targets not just individual
actors but organizations, and it can dismantle them by taking away money and
the ability to organize. And, through the discovery process and the trial, it
reveals the true nature of white supremacy in America.
It’s Personal
It’s taken
nearly $40 million in donated legal time for Dunn and Kaplan to get this far.
The firms Cooly, Boies Schiller Flexner and Woods Rogers have also pitched in, with
dozens of lawyers doing the do the unglamorous job of poring through the chat
records of Nazis.
It’s also
come at personal risk.
Spitalnick
hired security to both monitor the internet for threats and to keep her and the
legal team safe. She declined to give a dollar amount, but noted it was
significant. The week before the trial, the judge ordered the plaintiffs not to
talk about the specific threats they’ve received.
In a
deposition, defendant Matthew Heimbach, once considered the new face of white
supremacy, admitted on record to attorney Michael Bloch that he called the
legal team “fucking kikes” online. (He was fined thousands of dollars in legal
fees for disobeying legal orders related to the case.) Defendant Christopher
Cantwell, who earned the nickname “Crying Nazi” after a warrant was issued for
his arrest and he posted an emotional video about it, quoted Hitler in a 2020
filing and this month referred to the plaintiff’s legal team as an “army of
Jewish lawyers.”
But it’s
work they all believe in, because it’s personal. Both of Bloch’s grandparents
were in Nazi Germany in the 1930s. His grandmother arrived in the U.S. on the
night of Kristallnacht. His grandfather was one of the “Ritchie Boys” who
escaped Germany but returned to work as translators for the U.S. forces.
Spitalnick’s
grandfather survived by serving in the Russian army. A non-Jewish family hid
her grandmother, allowing her to survive.
“She was
hiding under a porch when her sister, nieces and nephews were murdered,”
Spitalnick said. “Those are the stories that stick with you, when you hear them
growing up, and they seem far off.”
I talked
with Dunn and Kaplan two weeks before the trial, their offices cluttered with
papers and exhibits. Dunn told me that it was just like a scene in a legal
thriller, where teams of lawyers pull frantic late nights, preparing for trial.
They can’t
think about what will happen if they aren’t successful. They see this case as
not about one incident, but about all right-wing violence in America.
Unchecked, we end up with more events like Charlottesville, and like the Jan. 6
attack on the Capitol.
So, it’s
all on the line: democracy, the ability of people to live without fear.
Plus,
Spitalnick pointed out that they’ve already made it harder to be a Nazi in
America ― or, at least, more expensive. Spencer has no attorney because he’s
out of money. Defendants can’t raise money because they’ve been deplatformed
from fundraising sites. White supremacist group Vanguard America has been
ordered to pay $16,000 for disobeying court orders in the case.
It’s a slow
bleed of access and money until what was once the dapper face of terror,
illuminated in fire, is revealed for what it always has been: nothing more than
hatred.
CORRECTION:
An earlier version of this article said there are 10 plaintiffs. At one point
there were 10, but there are now nine. Also, display text said the trial is
happening in Richmond; it is in Charlottesville.
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