The bulk of a lawsuit against a group of alt-right activists, neo-Nazis and racists stemming from the deadly “Unite the Right” rally can go forward after a federal judge concluded that a group of Charlottesville residents “plausibly alleged” a conspiracy to engage in racial violence among the groups.
U.S. District Judge Norman K. Moon of Virginia, in a 62-page decision, found that the lawsuit falls under the Ku Klux Klan Act of 1871, which was designed to curb violence against racial minorities after the Civil War.
The decision, which relied on the lawsuit for its factual basis, didn’t draw any conclusions about the veracity of the allegations, only that it met the minimum legal standard to be allowed to proceed.
Judge Moon did dismiss alt-right podcaster Michael Peinovich from the lawsuit, finding that while he promoted the event, there was no evidence he took part in the violence at Emancipation Park on August 12, 2017 that spilled over to another nearby park and downtown pedestrian mall.
“This tweet does not plausibly allege an agreement to engage in racial violence at these events,” Judge Moon wrote. “There are no allegations Defendant Peinovich even used Discord.”
Judge Moon dismissed some of the lesser supported allegations but left much of the lawsuit intact.
The decision, issued late Monday, comes as rally organizer Jason Kessler is planning an anniversary protest in Washington, D.C., after failing to secure permits to hold another event in Charlottesville. He is suing in federal court to try to force the city to grant a permit.
The bulk of Judge Moon’s decision outlines the various people and groups involved in “Unite the Right” — Kessler, alt-right front man Richard Spencer, the League of the South and various other racist organizations — and their contacts and communications before and during the rally.
“Here, Plaintiffs have plausibly alleged that they were attacked because of their support of non-white racial minorities, and so this element is satisfied to all defendants,” Judge Moon wrote.
A trial is set for July 8 through August 2, 2019 in the case brought by a group of 13 people hurt or attacked during the rally.
The groups and people used social media platforms such as Facebook and online forums such as Discord to plan violence at the rally, with Kessler and Spencer inviting a wide swath of white supremacist groups.
Kessler told some on Discord to bring sign posts, shields and other self-defense tools “which can be turned from a free speech tool into a self-defense weapon should things turn ugly,” Judge Moon wrote.
And, days before the rally, Kessler met with podcaster Christopher Cantwell to “plan unlawful acts of violence (and intimidation),” Judge Moon wrote.
The “Unite the Right” rally featured a torchlit march of white supremacists, separatists, neo-Nazis, including Cantwell, and others at the University of Virginia organized by Kessler and Spencer. During the march, protestors chanted “Jews will not replace us” and made “monkey noises at black counter-protestors,” Moon noted.
Spencer is accused of leading a charge toward three plaintiffs in the case during the march at the Thomas Jefferson statue on campus.
The marchers climbed atop the statue, waved torches and yelled “Hail Spencer! Hail victory!”
Later, Spencer wrote on his website: “The Alt-Right is finished debating, negotiating, surrendering. We’re ready to close ranks and fight for what is ours … We stand poised to conquer the continent.”
Spencer’s role in the planning for violence to occur, as well as the actions at the torchlit march, strip away any First Amendment protections for the speech, Judge Moon wrote, adding that the speech and conduct Spencer took part in can be taken as evidence that he gave others specific instructions to carry out violent acts or threats.
“Even if some of the torchlit march could be characterized as expressive conduct, the combination of torches and this violence was not protected by the First Amendment, and these moving Defendants can be held liable under Virginia’s hate crime statute,” Moon wrote.
The day after the torchlit march, the main rally at Emancipation Park – home to a statue of Confederate Gen. Robert E. Lee – turned violent. An alt-right adherent, James Alex Fields, Jr., of Maumee, Ohio, is charged with intentionally ramming his car into a group of counter-protestors near downtown Charlottesville, killing 32-year-old Heather Heyer. He faces both state and federal charges related to the incident.
Moon noted that , as alleged in the lawsuit, in the planning for the event, the catchphrase “run them over” was popularized on several websites, including Fox Nation, the Daily Caller and by multiple defendants in the lawsuit, including Matthew Heimbach, then the leader of the neo-Nazi Traditionalist Worker Party.
Heimbach previously encouraged a police car to run over protestors, saying “Don’t stop, officer” and “Fucking step on the gas,” Moon noted.
After Heyer’s death, Kessler tweeted “Communist have killed 94 million. Looks like it was payback time.”
Those comments, taken with the remarks of others, demonstrate that Fields’ actions “were consistent with the conspiracy’s avowed goals,” Moon wrote.
“While the Court acknowledges the weighty First Amendment interests implicated in the ‘Unite the Right’ events, Plaintiffs here have plausibly alleged conduct that lies ‘close to the core of the coverage intended by Congress’ when it passed the Ku Klux Klan Act to address violence against racial minorities,” Moon wrote.