Jason Kessler sat in the second row of the courtroom, taking notes and smiling over the legal mess he had wrought.
Kessler, the racist, alt-right Charlottesville, Virginia, resident who organized the deadly Unite the Right rally in 2017 had reason to be curious about the hearing in federal court in his hometown on Thursday.
U.S. District Judge Norman K. Moon is weighing whether to let a lawsuit go forward against Kessler and two dozen other racist and neo-Nazi figures. The lawsuit alleges a conspiracy to commit violence at the rally, which purportedly started as a protest over the proposed removal of a statue of Confederate Gen. Robert E. Lee from a city park.
Judge Moon didn’t rule immediately, telling attorneys in the case he would do so “reasonably soon.”
First Amendment grounds
Brought by a group of business owners and residents, the lawsuit centers on whether the First Amendment, which protects free speech, covers the actions at the Unite the Right rally or if the violence, antisemitic and racist chants over two days were part of a non-protected conspiracy.
The arguments lasted more than two hours, and took place in the shadow of Thomas Jefferson, a Founding Father and large-scale slave owner who wrote the text being debated.
Attorneys for the alt-right figures all made similar arguments: The lawsuit filed against them fails to allege a conspiracy of any kind and all the actions during the rally and weekend are protected speech.
James Kolenich, a Cincinnati attorney representing Kessler, “Crying Nazi” Christopher Cantwell and others, said legal precedents protect his clients’ comments, no matter how offensive some may find them.
“They came to Charlottesville to chant a lot of things,” said Kolenich, who was joined by local attorney Elmer Woodard, who was dressed in a wrinkled seer sucker suit, straw hat and sported mutton chop sideburns.
John DiNucci, a McLean, Virginia, personal injury attorney who signed on to represent alt-right front man Richard Spencer just hours before the hearing, said the plaintiffs haven’t provided any evidence that his client spoke to anyone about the rally or violent acts beforehand.
Judge Moon, though, wasn’t impressed with that argument.
“We try those drug cases and people are everywhere … and we convict 20 or 30 people, but nobody said anything to anybody else,” Judge Moon said.
“They don’t even allege a wink and a nod here,” DiNucci replied.
As the arguments went on, a gallery of more than two dozen plaintiffs and supporters took notes and listened. Just 20 feet away Kessler also took notes on what the attorneys were saying. Neither side looked at the other.
Alt-right podcaster Michael “Enoch” Peinovich opted to represent himself in the lawsuit and go without an attorney. Peinovich, dressed in a dark suit and glasses, focused on his claim that there was no evidence he helped plan the rally.
Instead, Peinovich emphasized a tweet he sent out before the rally warning about possible violence. Peinovich also said he brought body guards with him before speaking that weekend.
“I approached the park with a couple of friends to watch my back,” Peinovich said. “We love white people and there’s nothing wrong with that.”
Peinovich is the only defendant to represent himself. Spencer has been raising money for an attorney on the site freestartr.com. As of Thursday evening, he had slightly more than $20,000 of the $25,000 he is seeking from 138 supporters.
Daily Stormer editor Andrew Anglin and four other defendants did not respond to the lawsuit. Default judgments have been issued against them.
James Alex Fields, Jr., who is charged with first-degree murder after being accused of running a car into a crowd during the rally and killing 32-year-old Heather Heyer, did not seek to dismiss the civil suit.
Making the case
Plaintiffs’ attorney Roberta Kaplan told Judge Moon the 25 defendants were carefully chosen based on the evidence at hand.
“We went after the leaders,” Kaplan said.
Kaplan said much of the rally was organized on the website Discord, as well as online racist havens 4Chan and 8Chan.
At least 11 of the defendants have been identified for their use of Discord to discuss the rally and a known bodyguard of Spencer’s has also been identified, Kaplan said. Others will be Kaplan noted that online discussions went over how to beat people, what liability there would be if someone were run over and other violent acts.
Kolenich, arguing on rebuttal, acknowledged that his clients had “racial animus, no problem” when they spoke and chanted during the rally. But he said there was no conspiracy to commit violence.
“At the end of the day, it’s a political statement,” Kolenich said. “Someone on the alt-right is on the internet every day saying something that is not helpful to their case.”
At that comment, Kessler, sitting near alt-right figure Greg Conte, giggled.
“My clients, at worst, were reckless in what they said,” Kolenich said.
Judge Moon noted that as long as violence was discussed, it didn’t matter how it was carried out.
DiNucci tried to pick up on the reckless and exaggerated speech theory, telling Judge Moon that Spencer and others were big talkers, but not violent. He tried an exaggeration to make his point.
“What if someone showed up with an M-1 Abrams tank?” DiNucci asked the judge.
“If you planned to kill the victim with a small handgun, I don’t think it would make any difference to the victim,” Judge Moon said.