It’s understandable that many will cheer the outcome of the trial against the neo-Nazis and white supremacists stemming out of the “Unite The Right” march in Charlottesville, culminating in James Fields running down and killing counterprotestor Heather Heyer, 32. Fields is in prison, serving life, for his crimes, as he should be, so he won’t be contributing much to the $25 million verdict.
The cheers are for the ordinary reasons, that these were bad dudes who believed bad things and acted upon them to harm good people. And so the jury’s verdict, that they should be liable for the damage the march caused is a good verdict.
The main point was that they all shared an objective and could foresee the violence that occurred.
It was, the plaintiffs successfully argued, a conspiracy. But a conspiracy doesn’t necessarily require as much of an official plan, and official agreement, to engage in criminal conduct as some might believe.
The 77 pages of instructions from the judge explained how engaging in a conspiracy did not require all participants to forge an agreement or meet in the same room, or even to know one another. Nor did a conspiracy require the participants to have caused the violence themselves.
The plaintiffs drew a line from Mr. Fields through all the organizations that participated, linking him first to Vanguard America, the group that he marched with in Charlottesville, and then to the other organizations and their leaders. Lawyers for the far-right protesters argued that it was just online chatter that did not amount to strong ties between them, much less a conspiracy. None of the other defendants knew Mr. Fields beforehand, they said, and he was not involved in organizing the event.
If none of the defendants in this action knew James Fields, or took any action to directly cause him to mow down Heather Heyer, or reach an agreement to engage in criminal conduct with him, how could they be liable for what he did? The nasty details of how their inflammatory rhetoric, their calls for outrage, their push to go to war for their cause, manifested in one person’s twisted brain as approval of his hitting the gas pedal and murdering a woman. And that was enough.
In seeking to prove that the violence was foreseeable, the plaintiffs highlighted how often the idea of hitting protesters with cars came up beforehand.
Samantha Froelich, who was dating two of the main organizers simultaneously in the lead-up to the rally, but who has since left the movement, testified that hitting protesters with cars was discussed at a party earlier that summer in the “Fash Loft,” short for fascist, the nickname for Mr. Spencer’s apartment in Alexandria, Va.
Was this conspiratorial planning or the musings of nutjobs? If Fields wasn’t party to it, what difference does it make what was said among the poseurs at “Fash Loft”? It made enough difference that it was admitted into evidence at trial and provided a basis upon which to argue foreseeability.
The defense, that they were exercising their First Amendment rights to speech, expression, association and redress of grievances, did not prevail.
Many of them readily admitted to their racial animosity, but said they were exercising their First Amendment rights with a legal permit for the rally, not participating in a conspiracy to commit violence. They blamed the violence entirely on Mr. Fields, the demonstrator who mowed down counterprotesters with his car.
Despite vehement claims to the contrary, they’re right that racist speech and beliefs are protected under the First Amendment,
First, they argued that while others might deplore their views, the First Amendment allowed them. Second, that they acted in self-defense. Third, that the police were to blame for not keeping the opposing sides apart. Fourth, that none of them could anticipate what Mr. Fields did because none knew him.
The jury rejected these arguments under state law, although it hung under federal conspiracy law, the 1871 Ku Klux Klan Act, for reasons that are unclear. But even so, these racists lost, and lost huge, in the amount of a $25 million verdict, even if there is little money to pay it and it’s highly unlikely that any plaintiff will obtain compensation for their injuries.
The lawyers for the counterprotesters said that in addition to holding march organizers responsible for the violence, they hoped to deter hate groups from mounting similar toxic spectacles in the future, relying on civil suits in the absence of decisive action by the criminal justice system.
Whether the life sentences being served by James Field for mowing down Heyer was inadequately decisive is unclear, but may reflect some expectation that the criminal justice system should criminalize anticipatory “toxic spectacles” and prevent them from happening in the first place. How that could be is also unclear, but likely hinges on the criminalization of racism and hate that as yet would violate the First Amendment.
So is this verdict, this outcome, a great, stunning moment of liability that will “deter hate groups” in the future? But the law doesn’t distinguish between conspiracies of the right and those of the left. There is no limiting principle that says a riot promoted by Black Lives Matters, in which violence is raised, promoted and similarly foreseeable, will not end in a jury verdict of liability against its promoters, whether for the burning of buildings in Kenosha or a murder in Portland.
But they’re on the side of good, you say? The law recognizes no good or bad side of speech or belief. The First Amendment precludes the government from distinguishing good thoughts from bad ones, no matter how passionately others do. And there need not be an explicit agreement to engage in violence, to harm people, loot stores, burn down buildings, even if this conduct was committed by random crazies whose identities were no more known to organizers than James Fields’ was to Richard Spencer.
One difference, however, stands out. Unlike the empty pockets of white supremacists, the pockets of the BLM folks are bulging with donations. If found liable, a judgment against them might well get paid. With the outcome in this action against “Unite The Right,” the legal path has now been established to obtain compensation for those people and businesses who were foreseeably damaged by the conspiracy of the left.