//  10/16/17  //  Commentary

Last week, a complaint was filed against the organizers of the Charlottesville rally that left one woman dead and many others injured.  The lawsuit alleges that the rally organizers violated Reconstruction Era statutes and state laws by organizing a rally intended to result in violence.  The lawsuit has been much covered; here, we wanted to quickly highlight the (too) easy takes on the lawsuit, and what we think is a better (and more nuanced) take.

As Floyd Abrams explained, the defendants “will certainly claim that everything they did, everything they said, and every action that they took was protected by the First Amendment.”  Alan Dershowitz immediately jumped to the conclusion that the defendants would be correct: “The First Amendment was designed to protect this kind of unpopular and hateful expression.”

That reflects one take on the lawsuit, and what we think it is a (too) easy take—that the suit merely challenges the decision to organize a hateful rally that would spew anti-semitic, homophobic, racist words.

But that’s not what the suit alleges, as the second page (and fourth and fifth paragraphs) of the complaint make that clear:

[T]he violence in Charlottesville was no accident…. Under the pretext of a “rally,” which they termed “Unite the Right,” Defendants spent months carefully coordinating their efforts…  The violence, suffering, and emotional distress that occurred in Charlottesville was a direct, intended, and foreseeable result of Defendants’ unlawful conspiracy.  It was all according to plan—a plan they spent months working out and whose implementation they actively oversaw as events unfolded on the ground.

Let’s assume for a second that the allegations in the complaint are sufficient to support that inference—namely, that the defendants planned there to be violence as a result of the rally, and intended there to be violence as a result of the rally.  If that’s true, then there’s no First Amendment problem with the lawsuit.  It’s hornbook law that the First Amendment doesn’t protect true threats.  The First Amendment protects hate speech, a proposition the plaintiffs aren’t challenging.  But it doesn’t protect the words that make arrangements for actual violence to occur, and that’s what the plaintiffs are alleging.

The harder question is whether the plaintiffs’ allegations establish that the defendants did, in fact, intend to foment violence at the Charlottesville rally.  The fact that the rally wreaked horrible violence in Charlottesville doesn’t mean the defendants intended it to occur.  The fact that the violence did happen gives more credence to the plaintiffs’ allegation that the defendants intended the violence to happen, but it’s not sufficient to establish that allegation.

Here too, in assessing whether the plaintiffs’ factual allegations plausibly support their claim that the defendants intended to foment violence in Charlottesville, there are (too) easy takes, and what we think is a better, more realistic approach to the lawsuit.

The easy takes—and the ones we expect will make appearances over the coming weeks—will include some combination of the following.  One would be to adopt a kind of divide-and-conquer approach:  Look at every message, every video, every post, every image, and every statement in isolation, rather than together.  It’s easier to write off each individual statement as “speech without any intended or expected consequences” if you refuse to look at all of the statements each defendant made, or responded to, together.  But as any interpreter would tell you, words have meaning in light of their context, and we think the better approach is to assess the statements collectively rather than in isolation.

The other take would be to adopt somewhat strained interpretations of all of the statements (individually or in the aggregate), and write them off as exaggerations or (worse) humor.  Jason Steed has tweeted, written, and studied extensively the social function of humor, and what humor communicates.  We won’t add to his takes here, except to say that, as Steed notes, humor “is always in social context”: It “form[s] groups” and “send … message[s].”  The question here is whether it sent the message (and was intended to send the message) that violence should happen.

Moreover, while it is certainly possible to interpret every single statement, image, and message in the complaint to mean something other than the statements implicitly suggest or explicitly urge, we don’t think that’s the right approach either.  Interpreting the statements requires serious attention to what was said, when it was said, what the speaker had previously affirmed or signaled their agreement with, and a host of other considerations.  

The allegations in the complaint are both stunning in their extensiveness and detail, and also more than a little terrifying in the amount of coordination they reveal.

  • There are the grotesque statements (which, again, would be perfectly protected by the First Amendment if they are taken not to mean what they say, interpreted not to encourage what they implicitly suggest, or read so as not to encourage violence):
    • “[L]et’s fucking gas the kikes and have a race war.”
    • “A lot of us kinda like to see them [counter-protesters] bleed.”
    • “[Y]ou need to be prepared to do whatever they tell you to do, exactly as they tell you to do it.”
    • “There is a craving to return to an age of violence. We want a war.” 
    • “Be ready to die.”
    • “Be better at violence than they are.”
    • “The best defense is a good offense, my grandpappy taught me.”
    • “[W]e will clear them from the streets forever … you ain’t seen nothing yet.”
    • “I’m ready to crack skulls.”
    • “Studies show 999/1000 niggers and feminists fuck right off when faced with pepper spray.”
    • “A real man knows how to make a shield a deadly weapon.”
    • “I’m trying to make myself more capable of violence.”
    • “[I]ts [sic] better to only carry what would only be perceived as a defensive tool.  I figure knives would cause the police more alarm over a can of pepper spray or a rugged and abrasive shield.”
  • There is the defendant who was captured on video shouting “charge!” at the members of his group, who then attacked counter-protesters.
  • There are also images. Describing them won’t adequately convey their meaning, so we’d encourage you to read the complaint.  But, for example, there are images of people holding aerosol poison canisters over the body of a dead black man.  The canisters are marketed as “nigger-repellent[s]” or “nigger-killer[s].”  There is also a photograph of a defendant spraying mace at an unarmed counter-protester who has his arms down.  The image was captioned as “the greatest photo” and retweeted by other rally organizers as “He protect / He attack / But most importantly he got your back.”  There is also an image of a John Deere tractor captioned as “John Deere’s new multi-lane protester digestor,” with the observation that “NC law is on the books that driving over protesters blocking roadway isn’t an offense.”
  • There’s also the fact that rally attendants brought and were encouraged to bring semi-automatic weapons, pistols, mace, rods, armor, shields, and torches.  
  • And, again it’s difficult to fully describe (the complaint is nearly 100 pages long), but there are allegations of secret channels and messaging systems that were used to coordinate logistics and attendance—where participants were supposed to be (wherever there were counter-protesters and police said they would not intervene, it seems), whether they should come armed (again, whenever there were counter-protesters), and other schemes that look an awful lot like planned physical confrontations.  
  • There is also the fact that before the rally organizers urged people to assemble with weapons, the Virginia governor had declared that “It is now clear that public safety cannot be safeguarded without additional powers.”  And again, before much of the second day of the rally (and before many of the defendant’s exhortations), the Virginia governor  declared that, based on reports, “It is now clear … that the mostly out-of-state protesters have come to Virginia to endanger our citizens and property.”  So state officials interpreted rally organizers’ words and actions as reflecting their intention to engage in violence. 

We haven’t digested everything to come to a conclusion as to whether each of the named defendants did intend to foment violence in Charlottesville.  But the plaintiffs’ allegations are extensive and methodical, and people shouldn’t write off this suit as barred by the First Amendment based on over-generalizations or over-wrought interpretations of their allegations.  The suit is a serious one, and it’s one we will be watching.  

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

How Nervous Should You Be About Election Day?

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP