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.
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 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."