Unspeakable

A jury held a number of white supremacists and hate groups liable this past week for more than $25 million in damages over their role in the avowedly peaceful but ultimately deadly “Unite the Right” rally in 2017. The gathering of neo-Nazis, neo-Confederates, and other far-right factions helped to define U.S. politics in the Trump era, especially after a white supremacist killed a young counter-protester, Heather Heyer, and injured many others by plowing his car through a crowd. Donald Trump, then in his first year as president, infamously said that there were “very fine people on both sides” of this conflict. Joe Biden later opened his campaign to unseat Trump by recounting the events of Charlottesville, declaring that Americans were in a “battle for the soul of this nation.” After Tuesday’s verdict, Heyer’s mother, Susan Bro, told CNN, “The defendants seemed to want to argue that their speech was protected by First Amendment rights, and I would say speech is protected. Action from that speech is not protected.” What does this new verdict mean for the changing relationship between the ideas of free expression and violent action in the United States?

Nadine Strossen was president of the American Civil Liberties Union (ACLU) for 17 years, between 1991 and 2008. Strossen sees this trial as a vivid illustration of the difference between free speech and violence—and as a demonstration of how to hold people accountable for the latter without restricting the former. Strossen acknowledges that proponents of suppressing hateful speech cited the violence in Charlottesville as a justification in its immediate aftermath, but, she says, “those arguments have faded,” especially as Americans are able more clearly to see the legal distinction between “protected, albeit despised, speech” and “unprotected speech that contributes to actually discriminatory and violent conduct.”

Graham Vyse: What exactly did the jury find the rally organizers liable for here—and on what basis?

Nadine Strossen: This was a civil damages action brought by private plaintiffs—individuals who allege they were injured by participants in the Unite the Right rally in Charlottesville in August of 2017. The plaintiffs invoked a federal statute and some state statutes, both of which allow civil liability against people who have conspired to—under the federal statute—deprive people of civil rights based on racial animus and—under the state statutes—engage in a hate crime, intimidate, or harass based on discriminatory reasons.

The defendants were found culpable and held liable under the state statutes, and the jury imposed more than $25 million of damages on them collectively—both compensatory damages for the trauma and injuries the plaintiffs suffered and also punitive damages. The jurors deadlocked on the federal statutory charges, but it was considered a very significant victory that the defendants were held accountable for such substantial damages under the state claims.

Vyse: On the matter of conspiracy, did the jury find that these defendants intended to commit violence at the rally? Their messages to one another beforehand show that they were definitely anticipating and preparing for violence, with enthusiasm even, but they worded some of their communications as though they wouldn’t necessarily be instigating it.

Strossen: That’s an excellent question. A conspiracy, by definition, is carried out in substantial part through expression. On top of that, the protest in which the defendants were engaging is itself a form of expression as well as assembly, both of which are expressly protected under the First Amendment.

That said, the First Amendment’s protection of freedom of assembly expressly includes the word “peaceable”—“the right of the people peaceably to assemble.” Violent assembly is expressly excluded from constitutional protection.

In terms of expression, one has to show more than simple expressions of hatred or discrimination—or even expressions of an intent to engage in violence or advocacy of violence. One has to show overt actions taken by the defendants—beyond the planning stage—to carry out a violent conspiracy. The judge clearly instructed the jurors that they couldn’t find the defendants liable solely because of expression. They had to find intent to carry out—and steps in furtherance of carrying out—actual violence. There was highly detailed testimony and other forms of evidence for every single defendant, going beyond just the communication of hatred.

In evaluating the legal significance of any statement, one has to take into account not only the words themselves but the overall context. It’s not necessary for someone literally to say, “I’m going to participate in a conspiracy to crack skulls,” to take an extreme example. A jury can look at the overall context and take into account the intent as well, perhaps, as any desire on the part of the defendants to try to avoid saying something expressly.

The judge clearly instructed the jurors that they couldn’t find the defendants liable solely because of expression. They had to find intent to carry out—and steps in furtherance of carrying out—actual violence. There was highly detailed testimony and other forms of evidence for every single defendant, going beyond just the communication of hatred.

Vyse: Was there anything about the verdict, or the legal rationale behind it, that you found novel, precedent-setting, or otherwise significant?

Strossen: It’s extremely significant that every single defendant was found responsible to the tune of at least $1 million. The jury clearly wanted to send a strong message that this kind of intimidating conduct is not going to be countenanced. The plan of the people who put together the lawsuit was not only to bankrupt organizations and individuals but to serve as a deterrent against similar threatening violent gatherings in the future.