Moment Magazine: Roberta Kaplan Takes White Supremacy to Court

Moment Magazine featured our Charlottesville case and co-lead counsel Roberta Kaplan. Read the full article here.

From 300 miles away, Roberta Kaplan watched the events unfold: First, Friday night, when 300 men carried torches through the University of Virginia campus, chanting “blood and soil” and “Jews will not replace us,” as organizers issued instructions: Stay in formation, two by two. And then Saturday, August 12, 2017, just after 1:40 p.m., when a Dodge Charger appeared on Fourth Street: It stopped momentarily, then plowed ahead, into the crowd.

At the time, Kaplan, best known as the lawyer who helped legalize gay marriage in the United States, had just started her own law firm in New York City. She gathered her new team, working from laptops on card tables, and together they watched the fallout from the Unite the Right rally. Perhaps, she says, in hindsight, this was a mistake. On television, President Donald Trump insisted on an equivalency, that there were “very fine people” on both sides. One of the paralegals ran out of the room in tears.

Kaplan’s first thought: Something needed to be done—regardless of whether the Department of Justice stepped in. Could civil litigation, she wondered, work against Unite the Right? She called her friend Dahlia Lithwick, a legal writer for Slate, who lived in Charlottesville at the time. Lithwick offered to make introductions, should Kaplan decide to visit. Days later, she flew in. With a legal strategy taking shape in her mind, she met with victims. She cautioned them that suing Unite the Right would require sacrifice. They would risk, among other things, becoming targets once again.

Nearly a dozen would sign on—and some, like University of Virginia student Natalie Romero, had already been targeted more than once that weekend. During the torchlit march, hundreds of men had surrounded Romero and her companions; some threw an “unidentified fluid” on the group, who worried, trapped among lit torches, that it was fuel. The next day, Romero was also among the victims of the car attack, which fractured her skull and knocked her unconscious.

Of the plaintiffs, three others were hit by the car: Chelsea Alvarado, who was hit once—and then almost a second time, as the car barreled into reverse. Thomas Baker, who was propelled several feet into the air. Marcus Martin, who had shoved his fiancée, Marissa Blair, out of the way, taking a direct hit. Later, waiting at the hospital, Blair learned one woman had been killed: her friend, Heather Heyer.

In October 2017, Kaplan and cocounsel Karen Dunn filed Sines v. Kessler—and Romero, Alvarado, Baker, Blair and Martin are among the plaintiffs. While the driver of the car is already serving life in prison, Kaplan’s case is the only attempt to hold the movement’s leaders accountable. Using an obscure federal law—the Ku Klux Klan Act of 1871—it argues that the rally’s organizers conspired to commit violence.

The evidence: tens of thousands of leaked messages between the rally organizers anticipating the weekend’s brutality. On Discord, a chat platform intended for gamers, some advised against carrying “anything that’s explicitly a weapon,” opting instead for “flag poles and signs” or “a pocket full of rocks.” Others explicitly encouraged each other to bring “as much weaponry as legally feasible,” assuring that “[Richard] Spencer, organizers, everyone are behind this,” posting photos of themselves with their firearms. On a Discord channel labeled #virginia_laws, one user wondered, “Is it legal to run over protestors blocking roadways?”

The defendants are two dozen neo-Nazis, white supremacists and extremist groups connected to the Charlottesville march. There’s Jason Kessler, the rally’s main organizer, and James Alex Fields Jr., the perpetrator of the car attack. The rest are “a who’s who of the violent white supremacist movement,” as Integrity First for America, the nonprofit funding the case, describes them. They include Spencer, the white supremacist leader who coined the term “alt-right”; Christopher Cantwell, host of the internet talk show Radical Agenda, which bills itself as “common sense extremism”; and Andrew Anglin, founder of the neo-Nazi website The Daily Stormer, once the most popular hate site in the world.

Kaplan, 53, is not fazed by the notoriety of the defendants. She made her name arguing United States v. Windsor before the Supreme Court in 2013, the case that ultimately dismantled parts of the Defense of Marriage Act. More recently, in the wake of the #MeToo movement, she cofounded the Time’s Up Legal Defense Fund. Now, Kaplan hopes Sines v. Kessler will bring about another paradigm shift, clearing a path through the courts to fight violence driven by hatred.

The trial is set for October 26, 2020. Moment managing editor Ellen Wexler spoke with Kaplan about the case, the strategy and how best to stand up to 21st-century extremism.

What is the Ku Klux Klan Act of 1871, and what does it cover?

After the Civil War, the Reconstructionist Congress passed the 13th, 14th and 15th amendments in order to give real meaning to the revolutionary changes wrought by the war. But putting these in the Constitution wasn’t enough, so they passed what are essentially implementing statutes. The vast majority of those statutes apply only to government conduct. The Ku Klux Klan Act, however, is one of the few civil statutes that apply to private conduct.

The name pretty much explains it: It was intended to prevent the newly forming Ku Klux Klan from effectively re-enslaving the recently freed slaves in the South. If you organize a conspiracy to commit what’s called “racialized violence,” then you violate the statute. It hasn’t been used all that often—or used successfully, I should say—in our country’s history. It’s been used at times like this, where there’s a great upsurge in racism and anti-Semitism. It was used in the 1920s when there was an upsurge in Klan and racial violence, including the KKK rally at Madison Square Garden. It was used more recently during the civil rights movement; a few parents of Freedom Riders who were killed successfully sued under the KKK Act.

What’s different today about using the Act against 21st-century extremism?

In the past, these conspiracies were a bunch of guys wearing hoods meeting somewhere to plan hijacking a car or killing Freedom Riders. Our defendants are not localized, and they were able to use Discord to organize on a scale that had never been seen before. We got a break early in the case because someone hacked into the Discord servers that the organizers used. For weeks leading up to Charlottesville, they were communicating on message boards that were organized by topics: leadership, uniforms, how to make it look like self-defense, etc. People from all over the country descended upon Charlottesville based on what they’d been discussing on Discord for many weeks. And what they planned is what they did. And after they did it, they celebrated it as successful.

Typically, when you write a complaint, you don’t have what’s called pre-complaint discovery, other than in rare exceptions. But we got it here, and we wrote a 100-plus page complaint that tells the story of what happened, using the defendants’ own messages. The defendants then filed a motion to dismiss, arguing that this was all protected by the First Amendment and that they didn’t really mean what they said. That they were just joking, and it’s just pure coincidence that it all turned out exactly the way they planned—including talking about running over protesters. We won that motion, and since then we’ve been shoulder-deep in the trenches trying to get documents from these guys. It’s quite an undertaking. Not surprisingly, they do not seem to care about complying with court orders. It’s been a real struggle to get them to hand over stuff. We ultimately had to agree to pay the cost of imaging all their electronic devices (or at least the ones they would agree to turn over). We have pending motions against some of them, but at this point we’re going to go forward with deposing them all.

Why is it so important to determine that this wasn’t supposed to be just a rally—but that the violence was planned?

If these guys had all organized on Discord to stand peacefully on a corner in Charlottesville with a flag bearing a swastika saying “you should all go back to the ovens”—which is what they said—as odious as I find that to be, for obvious reasons, that’s probably okay given the primacy of the First Amendment. But that’s not what they planned. What they planned is: What’s the best weapon to use to hit protesters? What’s the best way to run over protesters and make it look like self-defense? That kind of conduct has never been protected in the First Amendment. So that’s why it’s important that violence was the goal, and violence is what they did. The worst part of that, of course, led to the death of Heather Heyer. But many of our clients in this case were seriously hurt. Many of them say that, while the physical injuries have received medical attention—I think Marcus, the African American guy you see being thrown over the car in the Pulitzer Prize-winning photo, has a zillion metal pins in his leg—the psychological injuries probably can never be healed. They are experiencing very, very severe forms of PTSD.

Could you tell us more about the plaintiffs who were injured?

They’re a cross section of those who were so horribly wounded by what happened—young people, community activists, students. We have a number of students who were there Friday night; one of our clients said he literally thought he was going to die. Then we have three or four people who were actually hit by the car. Marcus, who basically had his leg destroyed, and Marcus’s then-fiancée [now his wife], whom he pushed out of the way. A young student [Natalie Romero]—we have a photo of her face in the complaint—was covered in blood.

And then we have people like Reverend Seth Wispelwey. The events on Friday night were across the street from an interfaith service at St. Paul’s Church, which included Jews, and they were basically locked in, because they were afraid that if they left the church they would have been attacked.

What are the advantages—and disadvantages—of using the courts to fight back against what extremism has become in the 21st century?

Unlike at other moments of Jewish history, we live in a country with a constitution and a system of rules, law and judges who are willing to enforce that law. Unlike many of our ancestors, we have the ability to fight back using that system. In my view, we would be foolhardy not to do so. I remember as a young kid in the 1970s in Cleveland, Ohio, after listening to hours of Holocaust education in Hebrew school, lying in bed awake at night and thinking, what would I have done if I had been in Germany in the 1930s? I’m not saying that we’re in Germany in the 1930s right now—or maybe we’re in Germany in the early 1930s; there are certainly parallels—but we now have the ability to do something about this. As a very, very proud Jew, I believe very strongly that we need to fight back—not in the streets, not using violence—but fight back using the courts.

That doesn’t mean the courts are all of it. We need the cooperation of law enforcement, which is finally starting to wake up. We need the cooperation of partner groups, like the Anti-Defamation League (ADL). We need to educate people. And part of what this trial will do, other than obtaining justice for our clients, is to educate the American public about what actually happened, because I think a lot of Jews in this country still don’t want to believe what is happening. In a lot of ways, this will be a proverbial shofar call to Jews to wake up.

I’ve been a litigator for many years, and it’s hard to surprise me. My skin is probably nine inches thick at this point. But there was one thing in this case that really shocked me. And that’s the degree to which the primary motivator of these defendants is not racism, although they hate black people. It’s not anti-immigrant or Muslim bias, although they hate Muslims and immigrants. It’s not sexism and misogyny, although they are sexists and misogynists. It is undoubtedly, beyond question, hatred of the Jews. When you look at their conversations, they devote the overwhelming majority of their words to hatred of Jews.

It’s actually pretty shocking, because most of them are from rural areas, where I have to believe they don’t really know any Jews. So it really does feel like other times in the Jewish past, where these kinds of base hatreds bubbled up out of the ground and became a very, very serious danger.

How does Judaism inform your work?

My Judaism influences every single thing I do all day long. I can’t separate my Judaism from how I act day to day in every realm of my life. My Torah portion [for my bat mitzvah] back in 1976 was the one that included  Tzedek, tzedek tirdof (“justice, justice you shall pursue”). I’m not going to say that I somehow, at the age of 13, decided to pursue justice. But for me, and for all the members of our team here, there is a strong view that our role here is to try to repair the world as much as we can and to do our part. And that’s what this case is about. We cannot sit back and lose this wonderful country, where Jews have had success and freedom unlike anywhere else in all of Jewish history. We cannot surrender that to these forces.

I’m just going to raise this because it always comes up: A question we get a lot is, what about left-wing anti-Semitism? Here’s my position on that: I deplore left-wing anti-Semitism as much as I deplore right-wing anti-Semitism. But as far as we know, no Jews are being shot and bombed and killed by left-wing anti-Semites in the United States today. They are being shot and bombed and killed by the alt-right.

Since taking on Sines v. Kessler, you’ve received a number of extremist threats. In the midst of working to fight extremist hatred, what’s it like to also be the target of it?

I would prefer to go through life without receiving weekly death threats. But the only way to fight back the way we’re fighting back is to accept that that’s a fact of life today. I don’t want to get into any of the details about security for obvious reasons, but it’s very, very substantial. And it’s not just me—it’s me, it’s the plaintiffs, it’s witnesses, Integrity First for America, the experts.

What’s the ideal outcome of this lawsuit, and are you hopeful?

We absolutely can and will bankrupt these groups. And then we will chase these people around for the rest of their lives. So if they try to buy a new home, we will put a lien on the home. If they get a new job, we will garnish their wages. The reason to do that is because we want to create a deterrence impact. So we send a message to other people that if you try to do something like this, the same thing will happen to you. And it already has been a deterrence. We’re seeing lone shooters now; we’re not seeing the kind of massively organized conspiracy we saw in Charlottesville. And I think that’s in large part due to our case.

In our country, every couple of decades or so there’s a trial that becomes a kind of public education on issues far beyond the parties in the case, and I think this trial will have that same impact. There’s no substitute for things like the rule of evidence, testifying under oath, using documents, hearing from experts, having a jury decide. There’s no such thing as fake news in a courtroom. There are facts—and we’re going to prove the facts.