Roberta Kaplan seeks to deprive supremacist groups of free speech protections by proving incitement to violence, and deter them with massive financial penalties in a civil suit
WASHINGTON (JTA) — It’s not the speech, it’s the conspiracy.
Roberta Kaplan, the lead counsel on one case that changed US history — upholding the rights of same-sex spouses — wants to make history again and scare white nationalists intent on violence into thinking again.
Government efforts to confront the rise of white supremacism have been inhibited over the last decade by free speech considerations: However vile the expressions of people who express hatred toward Jews, blacks and other minorities, the argument goes, the expressions are speech protected under the First Amendment.
Free speech protections are why the American Civil Liberties Union stepped in ahead of the August 12, 2017, neo-Nazi march in Charlottesville and sued on behalf of the marchers to assemble at their preferred venue, a park in the center of the Virginia university town.
The march turned deadly. Kaplan, reviewing the evidence in its aftermath, saw in online conversations between the organizers not speech, but a conspiracy to commit deadly violence.
“They intended for violence to happen, it did happen and they celebrated it,” Kaplan told the Jewish Telegraphic Agency in a recent interview. “I think it is important for Americans to hear what these men and groups did, what they intended to do, how they celebrated and what a grave threat to our system they are.”
Kaplan and another lawyer, Karen Dunn, are leading a team that has sued 25 of the alleged organizers of the Charlottesville violence under post-Civil War statutes that cracked down on Ku Klux Klan terrorism in the South aimed at keeping blacks from exercising their newly acquired civil rights. A 1983 amendment to the Ku Klux Klan Act, an 1871 law, allows victims of the terrorism to sue for monetary compensation, not just the government.
Their suit, known as Sines v. Kessler, essentially says the defendants used websites and other social media not just to share protected free speech, but to coordinate and plan the racially motivated violence that occurred at the “Unite the Right” rally in Charlottesville.
“The Defendants in our case used various forms of social media to coordinate their illegal conspiracy to commit racialized violence in Charlottesville in August 2017,” Kaplan said in a statement in February after a judge said Twitter and other platforms must turn over material.
A nongovernmental organization has raised $10 million toward paying the costs, an official of the group told JTA, and is still fundraising. Integrity First for America, according to its website, is “dedicated to holding those accountable who threaten longstanding principles of our democracy — including our country’s commitment to civil rights and equal justice.” But for now its only brief is the Charlottesville case.
Amy Spitalnick, the group’s executive director, in recent months has explained the lawsuit in Jewish forums, including to the Jewish Council for Public Affairs and the American Jewish Committee.
Using subpoenas, Kaplan’s team has obtained reams of information. Although part of the legal work by a team of about 12 lawyers is pro bono, there are steep costs involved in sorting through the material and preparing incriminating statements for use throughout the process, as well as the price of security for the lawyers.
Spitalnick said the lawsuit was critical, especially because the government during the Trump administration has rolled back efforts to track and prevent white supremacist violence. (The Department of Justice has chosen not to sue the Charlottesville defendants under the same 1871 Klan law.)
“The infrastructure that’s meant to address this sort of thing has actively been dismantled,” Spitalnick said.
The point is not to make the 10 plaintiffs rich, Kaplan said. It’s to create a disincentive for anyone to carry out the violence again.
“One point of this case is to make it clear to anyone considering this, if you do that, there will be very large judgments against you that will follow you until they are paid,” she said, noting that it is unlikely plaintiffs will be able to collect, in part because some of the defendants are in hiding and others are broke. “Our hope is that will act as a deterrent for people to engage in organized racialized violence.”