Lady Justice, page 9
Soon after the first march, the local organizer Jason Kessler sought a permit for a far bigger and more ambitious rally in August. On July 8, 2017, the KKK decided to get in on the white supremacy action, and about fifty of the Loyal White Knights of the Ku Klux Klan, headquartered in North Carolina, gathered at Justice Park, many in hoods and waving Confederate flags, all escorted by police in riot gear. Hundreds of local counterdemonstrators showed up in protest (I was one of them), and the Klansmen themselves offered conflicting media statements about whether they were there to support the Civil War monuments or simply to protest “the ongoing cultural genocide . . . of white Americans,” as one explained to the press. When counterprotesters failed to disperse quickly enough, the police tear-gassed them, which added fuel to the burgeoning narrative that the local cops were there to protect and coddle white supremacists while gassing antiracist counterprotesters.
That long summer of 2017 also featured a visit from the Proud Boys, yet another white supremacist group that also fetishizes white dominance, male bonding, and Gap khakis. Locals struggling to understand why the city was rapidly becoming Disneyland for Nazis were split as to whether the best strategy was to face them down in bars and fight or stay home and ignore the juvenile attention seeking. We were also dealing with the growing anticipation of the so-called Unite the Right rally, slated for August 12, which promised to be—according to Spencer and the other organizers, including the Traditionalist Worker Party’s co-founder Matthew Heimbach and other white supremacist leaders—the biggest white nationalist rally in modern history. Kessler had received his permit. Signage for the rally featured prominent Nazi symbols. Participating groups would include the National Policy Institute, the neo-Confederate League of the South, neo-Nazi groups, and the Traditionalist Worker Party groups as well as Vanguard America and the National Socialist Movement. The former KKK Grand Wizard David Duke would attend as part of the who’s who of white pride and racial intolerance.
To repeat: It was never about Civil War monuments or southern dignity or states’ rights or the erasure of white history. It was about white fury and violent white ethno-nationalism, and that was fueled by Donald Trump’s endless claims about Mexican rapists and Muslim terrorists. During the 2016 campaign Trump had initially refused to condemn David Duke, retweeted a Twitter account called WhiteGenocideTM, and persistently derided refugees and immigrants. It needn’t reflect a causal connection that after Trump won the election, white supremacists like Spencer celebrated the presence in the White House of someone whom he believed shared his vision of “peaceful ethnic cleansing” and his loathing of the Lügenpresse, the Nazi word for the media.
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It’s hard to reflect on the Trump presidency without taking into account the ways in which it proved a challenge for defenders of free speech. From accusations about “fake news” and claims about censorship and deplatforming, Trump’s great gift lay in recasting First Amendment liberties as weapons to be used against other institutions. The framing of the Charlottesville alt-right rally as protected speech and protest was of a piece with that larger move.
The First Amendment prevents Congress from “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” In a sense, then, it celebrates this quintessentially American value—the right to talk smack—and is the most apt liberty to inflame the modern era, with debates over “cancel culture” and mandatory donor disclosure and doxing dominating every policy question we face. The current Supreme Court turns out to be the most speech-protective court in American history. That means that in recent decades it’s used the idea of protecting free speech to, just for starters, kill sweeping efforts to limit campaign contributions. It’s barred states from posting even truthful signs in reproductive health clinics. The court has used speech rights to make it harder for unions to collect member dues and organize. It is perhaps fitting in its own way that virtually any sort of conduct that can be recast as “free speech” is permissible in a country where nobody ever seems to stop talking.
The free speech clauses are also among the most widely misunderstood. Every time someone insults someone else on cable news, then faces repercussions, people start to hoot and holler about the death of the First Amendment. But of course the First Amendment applies only to government censorship and not to every censor or sponsor or employer. And the First Amendment also doesn’t render any of us immune from the public or economic consequences of doing and saying stupid or hateful things. More than any other category error, the mistaken notion that the First Amendment allows any American to say anything, anywhere with impunity is among the most pervasive. That said, there are not a lot of Supreme Court free speech cases featuring people we admire greatly. A vast array of sketchy pornographers, overheated rabble-rousers, and notable bigots and bigmouths have given their names to the body of cases that protect free speech rights for the rest of us.
The Chicago suburb of Skokie, Illinois, had a population of about 70,000 people in 1977, of whom approximately 45,500 were Jewish. Between 5,000 and 7,000 of those Jews had survived the concentration camps of the Holocaust, which is precisely why the Nazi Party of America chose Skokie for their symbolic hate march in May 1977. The thirty to fifty demonstrators planned to wear Nazi uniforms and swastikas, but organizers made clear that they had no intention of threatening or harming anyone. When it became clear that thousands of counterprotesters would come out in response to the march—and that some kind of violence might ensue—a federal district court enjoined the wearing of Nazi uniforms or swastikas in the parade or the distribution of pamphlets that might incite hate. Both the Illinois appeals court and the Illinois Supreme Court refused to lift the injunction. The case came up to the US Supreme Court in the spring of 1977.
In a per curiam, or unsigned, opinion authored by Justice John Paul Stevens, the high court found that the lower courts in Illinois should have imposed stricter procedural safeguards before allowing the injunction to remain in place and then sent the case back to the lower courts for another look. It was a technical solution, yes, but the substance of that Skokie ruling has come to stand for the broader legal proposition that the constitutional bar for banning—in advance—a parade or a march is exceedingly high and that courts must be extraordinarily deferential to the free speech interests asserted by protesters. The court battle over the Nazi marchers in Skokie went up and down the court system for fifteen months, until the final march was indeed allowed to take place, but relocated to Chicago, on June 24, 1978, at which point The New York Times estimated that two thousand counterprotesters “drowned out” the twenty Nazis, and the Chicago Tribune snickered that the whole march “sputtered to an unspectacular end after 10 minutes.” It was one of the most underwhelming displays of Nazi pride in recorded history.
But the Skokie litigation roiled the ACLU, which had tapped a Jewish attorney—David Goldberger—to defend Frank Collin, the leader of the Nazi Party. Hundreds of ACLU members resigned from the group in protest. The case stood for both Jews and civil libertarians as a high-water mark for the principle, articulated by Noam Chomsky, that “if we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.”
For decades the Skokie story stood as a testament to the idea that allowing hateful and bigoted speakers to have their forum, so they could be drowned out by right-thinking speech in the bright sunlight, was the obvious solution to the free speech dilemma. Sad Nazis marching to the cartoonish womp womp of sad trombones for dumb ideas was the physical manifestation of the notional defense of the marketplace of ideas and its power to sort good speech from bad.
All through the long summer of 2017, at every dinner party and barbecue and visit to the pool (which had been for whites only just a few decades earlier), when I was asked my opinion about free speech and the plans for August 12, my answer was twofold: One, that Skokie was the reason the Nazis had to be allowed to march. And two, that the police and the city would protect us. I was ultimately wrong on both counts.
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In the days leading up to the Unite the Right rally, when it became clear that hundreds of white supremacists, many of whom planned to wear military garb and shields and carry repurposed flagpoles and sprays, and some of whom intended to bear arms, were coming to protest, a legal scuffle ensued between the march organizers and the city. The town abruptly announced that the permit for the march would be approved only if the event could be moved to a larger park, far from the monuments in a crowded downtown square. Kessler, the local organizer, supported by the ACLU, then sued the City of Charlottesville on free speech grounds; he argued the protest had to be near the monuments. A federal trial court judge agreed. The march would take place at the cramped downtown parks, where the disputed statues stood, and the Nazis made various promises about how they would conduct themselves honorably.
Local residents made hasty decisions about whether to join the counterprotests—which might turn violent—stay home, or attend antiracist rallies at alternate venues. I joked wryly that each of the three rabbis in the lone synagogue in town picked one of the options: rally for justice, basement, or head downtown prepared for conflict, and families divvied themselves up to follow the rabbi of their choosing. We sat quietly in the Black churches and listened to women who had grown up forbidden to cut through the “white” parks as they described their fear of the local police and worried for the fates of their grandsons if they protested the Nazis out in the city parks.
We knew days in advance that a dangerous march would happen on the UVA campus on August 11. We knew because leaked internet plans and chats were already in circulation showing that this was not to be a peaceful white pride march. We knew there would be guns carried and that plans were surfacing about physical conflict with counterprotesters. My then twelve-year-old son, summing up what would become my mantra for the remainder of the furor over the march—if not for the Trump era more broadly—sadly told me on August 10 that if we engaged with the Nazis, we would lose, and if we ignored them, we would also lose. He was correct on both scores, and the lingering question of how to deal with bigots who feed off the outrage they engender seems like the defining question of our lifetimes.
By the morning of August 11, it was clear this was no longer a free speech problem, even for those who had persuaded themselves otherwise. I woke up that day to the buzzing of drones overhead, street closures, sirens, helicopters, and the news that armed white supremacists were rolling in from out of town, arriving at the tiny local airport, checking into hotels. David Duke was reportedly staying at one of the finest resorts in town. An armed white supremacist, Chris Cantwell, was briefly detained by the police for having a gun in the parking lot outside Walmart, presumably as he stocked up on tiki torches. The police, noting that “open carry is legal in Virginia,” quickly let him go. Suddenly, in a town where you knew everyone and couldn’t even attempt to cheat on your spouse, everyone looked like a stranger and a threat.
As the local journalist Hawes Spencer described it for The New York Times that night, and later, in his 2018 book, Summer of Hate, on Friday evening, August 11, in an unannounced parade preceding the Unite the Right rally, “several hundred torch-bearing men and women marched on the main quadrangle of the University of Virginia’s grounds, shouting, ‘You will not replace us,’ and ‘Jews will not replace us.’ They walked around the Rotunda, the university’s signature building, and to a statue of Thomas Jefferson, where a group of counterprotesters were gathered, and a brawl ensued.” The twisting line of torchlit white supremacists should not have been allowed to carry an open flame on campus. A student RA ended up hiding a group of Black students in a nearby basement. White supremacists were shouting “Hail Trump!” and “Into the ovens” and threatening to put counterprotesters into camps.
Nazis began to punch counterprotesters and to hit them with torches. As UVA’s best-known faculty member, the political commentator Larry Sabato, who was present on campus that evening, would later say, campus police “gathered on the Rotunda steps in a line of about ten and did nothing.” In the melee, UVA students protesting the Nazis had lighter fluid thrown on them and were pepper sprayed as lit torches were thrown in the air. Up the street, community members of various faiths who had gathered at a prayer vigil held in St. Paul’s Memorial Church were not allowed to leave the building. At Congregation Beth Israel, the primary synagogue in town and my own synagogue for seventeen years, Torah scrolls salvaged from the Holocaust had to be spirited away to congregants’ homes. Trust me here: none of it feels much like a movie when it’s happening on the streets and parks where your toddlers learned to walk.
But Friday night was of course nothing compared with the events of Saturday, August 12. Virginia’s governor, Terry McAuliffe, declared a state of emergency and called out the national guard just before the rally was set to start at noon. Hundreds of Nazis armed with shields, Mace, body armor, clubs, flagpoles, rocket launchers, and semiautomatic weapons marched through the park, in violation of their prior agreement to enter only through a single entrance. They swarmed in from all sides, and protesters and counterprotesters could not be differentiated by law enforcement. White supremacists hurled insults—calling counterprotesters fat but promising that “we’d still do you” and threatening to put one African American woman on the “first f—— boat home.” Counterprotesters were assaulted and beaten, sometimes in sight of the police. An African American man, DeAndre Harris, was brutally beaten by Nazis dressed in military tactical gear in a local parking garage. And the law enforcement response was—as a comprehensive report undertaken later would show—minimal, as officers stood by, untrained and unprepared for what was occurring. School crossing guards had been conscripted into active duty. A police helicopter crashed, killing two officers inside. And of course David Duke offered up triumphal speeches in the park, assuring his cheering fans, “This represents a turning point for the people of this country. We are determined to take our country back. We are going to fulfill the promises of Donald Trump, and that’s what we believed in. That’s why we voted for Donald Trump, because he said he’s going to take our country back.”
Armed militiamen patrolled, in unreadable insignias, claiming they were keeping the peace, but who could know what they were protecting? Drones buzzed endlessly overhead. In interviews with faith leaders from several houses of worship, I was told that to the extent anyone was protecting local counterprotesters that day, it was members of antifa, the loose amalgam of antifascists who showed up at white supremacist events. The city, the cops, and the state were overwhelmed. It was an invasion.
That afternoon, a Dodge Challenger driven by James Alex Fields Jr., a white supremacist who had traveled all the way from Ohio to participate in Unite the Right, struck a group of counterprotesters with his car and killed Heather Heyer, a thirty-two-year-old paralegal and social justice protester, who died from blunt force injury to the chest. Nineteen others were injured in that attack, including Marcus Martin, a friend of Heyer’s who was hit by the car as he pushed his fiancée out of its way. His leg was ruined. Martin, whose red sneakers can be seen in the iconic footage from that day, was captured for all time, upended and flying through the air from the force of Fields’s car, in a Pulitzer Prize–winning image of the attack.
The trauma didn’t end on August 12. Community members were stalked online by Nazi sympathizers, egged on by the neo-Nazi website The Daily Stormer. African American neighborhoods were terrorized for days after the rally. Locals who had spoken to the press were doxed. Vans parked outside the synagogue, keeping watch. But what could be done? Fields had been arrested and charged with murder. Kessler attempted to give a press conference and was shouted down, then punched by a counterprotester. Activists and antiracist protesters helped track down the identities and whereabouts of several Nazis by crowdsourcing images online. The community was shattered, and it wasn’t initially clear that anyone who had planned the rally would be brought to justice in any meaningful way. The Justice Department, which would ordinarily investigate the event as racial violence directed at minority communities, stood by silently as the president refused to condemn the white supremacists. The police, the courts, the university, the city, and the state had all let Charlottesville down, as had the federal government, and years later social justice activists argued that systemic racism was and is the reason for the near-total breakdown of government and institutions that day.
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Robbie Kaplan called me at home in Charlottesville on August 14 from her office in Manhattan. She had an idea for a lawsuit. She just needed some plaintiffs. Kaplan had made a name for herself in legal circles as a powerhouse commercial litigator at Manhattan’s Paul, Weiss, Rifkind, Wharton & Garrison—one of those fancy-name law firms that most young attorneys would kill to work for. A profile in The Washington Post from 2021 describes her as a “ ‘traditionalist,’ in pearls, pumps and, pre-coronavirus, superior blond highlights.” But the nonlegal world also got to know Kaplan when she went to the Supreme Court in 2013, representing Edie Windsor, the eighty-three-year-old widow who successfully challenged the Defense of Marriage Act. Kaplan surprised a whole lot of court-watchers, myself included, when she prevailed in Edie’s case, in part because she wasn’t one of a very rarefied group of (mostly male, mostly white) specialty appellate litigators who argue the bulk of the cases at the high court. Even in the Windsor case, Kaplan was an outsider in every way: a Jewish, gay, brash commercial litigator from New York City, arguing a towering constitutional case at the highest court in the land.
