More than 40 years ago, the American Nazi Party announced its intention to march through the streets of Skokie, Illinois, a city with the largest population of Holocaust survivors in the United States. Years of court battles made it clear that one of the U.S. Constitution’s most revered amendments protected the right of the Nazis to march in Skokie, despite the fact that their hateful, racist speech was abhorrent to the majority of the population there and elsewhere. Their views, and their right to associate with others who espouse those views, are protected by the First Amendment. But the First Amendment does not protect violent conduct, nor speech that incites imminent violence.
Fast forward to 2016. By then, the United States had seen a resurgence of white nationalism fueled by “anti-other” rhetoric during the presidential campaign. Hate crimes rose dramatically. Between 2016 and 2017, the number of hate crimes reported to the FBI (believed to significantly undercount those crimes because of the voluntary nature of the reporting) rose 17 percent to more than 7,000 incidents.
Neo-Nazis, Neo-Confederates, KKK, and Skinheads—many of whom previously had confined their hate-filled rants to the internet—recognized that the new political environment was permissive enough that they could step out of their chat rooms and into the physical space. And they were joined by a new cadre of white supremacists who deemed themselves the “alt-right.” Through speeches by the likes of Richard Spencer and Milo Yiannopoulos, and recruitment on college campuses by European far-right groups like Identity Evropa and Atomwaffen, this movement sought to normalize white nationalism among college-aged white males.
And that was how Jason Kessler, a relative nobody who previously had participated in the far-left “Occupy Wall Street” movement, was able to bring these groups together in the biggest racist, anti-Semitic white supremacist rally this country had ever seen. Dubbed “Unite the Right,” the rally ostensibly was organized to protest a decision by the city of Charlottesville, Virginia, to remove Confederate statues in two of its downtown parks. But in reality, Unite the Right was a deliberate attempt by the white supremacist movement to flex its muscle, incite fear, and provoke violence.
What we saw on Aug. 12, 2017, was a militaristic show of force and violence. Medieval-looking battalions of mostly white men with shields, helmets, clubs, and flagpoles marched through the small city’s streets, flying their banners and engaging in hand-to-hand combat, protected by heavily armed private militias. The day culminated with the death of Heather Heyer, killed when one of the rally-goers, James Fields, plowed his car into a group of counter-demonstrators in an act of domestic terrorism.
First and Second Amendment Myths
As video of the melee spread across the globe, many commentators in the U.S. suggested that the protest was protected by the First Amendment and the arms-bearing was permitted by the Second Amendment. But the First Amendment does not protect violence or incitement to violence, and the Second Amendment, while protecting an individual right to bear arms for one’s own self-protection, has never been held to allow private citizens to band together to create their own armed militias, wholly unaccountable to the civilian government.
This is important, for in the immediate aftermath of the Unite the Right rally, Kessler and other prominent white supremacist figures went beyond pronouncing the event’s resounding success in showing the world that the movement was more than a meme. They also vowed to return to Charlottesville, as often as necessary, to avenge what they decried as the city’s violation of their rights when it declared an unlawful assembly, cutting short the opportunity for additional bloodshed.
But while Kessler thought he could weaponize the First Amendment, we at the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown Law, knew that he could not. State constitutional and statutory provisions in nearly every state prohibit private paramilitary activity like what occurred at Unite the Right.
Indeed, 48 states have a provision in their constitutions requiring the military to be “strictly subordinate” to civilian authorities. Twenty-eight states have statutes barring private individuals from organizing as military units, parading, or drilling with firearms in public. And 25 states, including Virginia, have statutes that prohibit two or more people from assembling to train in or practice the use of firearms or “techniques” capable of causing bodily injury or death in furtherance of civil disorder.
The discovery of these legal tools—thanks to a Lawfare post by University of Virginia history professor Phillip Zelikow—gave us the idea for a lawsuit. Not a lawsuit for money damages incurred by the victims of Unite the Right, but a forward-looking lawsuit seeking a court injunction preventing individuals and groups from returning to Charlottesville to engage in prohibited paramilitary activity.
This would be a content-neutral lawsuit based on conduct, not speech. As such, it would not infringe on First Amendment rights to peaceably assemble and express viewpoints even as reprehensible as those of the white supremacists. Nor would it trample anyone’s Second Amendment right to carry a firearm for individual self-protection. But what it could prevent was a repeat of the violence of the 2017 rally.
Conduct Prohibited Under Virginia Law
By viewing and listening to hundreds of hours of video and podcasts, searching hundreds of photographs, combing through thousands of private chats on the Discord platform (a free voice and text chat platform built for gamers, but used by right-wing extremist groups to plan for Unite the Right), and interviewing numerous people who had been at Unite the Right, we identified the individuals and groups whose conduct fell most clearly within the prohibitions of Virginia’s anti-private-militia and anti-paramilitary provisions. These included four of the prominent far-right groups that participated in the rally—Vanguard America, Traditionalist Worker Party, National Socialist Movement, and League of the South—as well as many of their leaders.
The groups also included several of the most heavily armed self-professed militias, such as the Pennsylvania Light Foot Militia, the New York Light Foot Militia, and the III% People’s Militia of Maryland, which claimed to have been there not to espouse white supremacist ideology, but instead to protect the First Amendment rights of the protesters. The groups also included a left-wing militia, Redneck Revolt, that believes in armed community defense and deployed to Charlottesville to provided heavily armed protection to counter-protesters. Finally, they included the organizers of the rally, Jason Kessler and Elliott Kline (a.k.a. Eli Mosley).
The city of Charlottesville, anxious to take action to prevent a reprise of the rally that had caused so much physical and emotional pain and tarnished the city’s image, readily signed on as a plaintiff, as did a number of small local businesses and neighborhood associations. The lawsuit was filed two months to the day after the rally. It sought injunctive relief under the state constitution, the state anti-paramilitary statute, the common law of public nuisance, and a state statute barring the false assumption of the duties of law enforcement officers (something that the self-professed militias and Redneck Revolt had done).
The lawsuit was met with outrage by the defendants, vows to fight it in court on First and Second Amendment grounds, and fundraising campaigns for attorney’s fees. But as the case progressed, many of the defendants were unable to secure legal representation, and even among those who did, many became disenchanted with the idea of participating in a second Unite the Right rally, as Kessler continued to promise. This was likely the result of many factors, particularly infighting and fractures in the alliances between right-wing groups whose interests did not align perfectly and a plethora of other lawsuits against many of them seeking money damages.
Within eight months of filing suit, all but two of the defendants (individuals, organizations, and their successor organizations) had voluntarily entered into consent decrees by which they agreed, permanently, not to return to Charlottesville “as part of a unit of two or more persons acting in concert while armed with a firearm, weapon, shield, or any item whose purpose is to inflict bodily harm, at any demonstration, rally, protest, or march.” The Court signed these consent decrees, giving them the force and effect of court orders, the violation of which is prosecutable civilly or criminally.
In June 2018, less than two months before the one-year anniversary of the rally—the date for which Kessler had sought a permit for Unite the Right 2.0—the case was heard by Charlottesville Circuit Court Judge Richard Moore on the remaining defendants’ demurrers, otherwise known as motions to dismiss. The demurrers argued that the case should not be permitted to go to trial, then scheduled for July 31, because the relief sought would violate the First and Second Amendments, there was no right to sue for injunctive relief based on state constitutional provisions and criminal statutes, and other arguments.
But these arguments were rejected by Judge Moore in an opinion issued on July 7, 2018. Notably, the judge wrote, “I cannot find that the City must sit idly by and wait for [the defendant] groups to show up and break the law and cause (or increase the risk of) harm, fear, injury, or death.”
Within days of the issuance of Judge Moore’s opinion, the remaining two defendants—including Unite the Right organizer Jason Kessler himself—entered into consent decrees, providing the city and the other plaintiffs with exactly what they had sought when bringing the lawsuit and obtaining some measure of assurance that a repeat of the violence of the Unite the Right rally would not occur again in Charlottesville. Indeed, not long thereafter, Kessler called off his plans for a repeat rally in Charlottesville, instead moving the rally to Washington, D.C., where his small cohort was overwhelmed by thousands of counter-protesters and no violence ensued.
Are there other uses for the state anti-private-militia and anti-paramilitary laws? You bet. They can be the legal basis for content-neutral time, place, and manner restrictions during protests and rallies where there is reason to believe violence may break out. Cities like Murfreesboro, Tennessee, have used them successfully as the grounds for prohibiting weapons and paramilitary activity from demonstrations on public property. And the threat of a lawsuit can also be a deterrent. Local jurisdictions can and should look to these state-law sources as one legal tool to protect public safety while also protecting constitutional rights.