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Two Years After Charlottesville, These Women Are Taking the Alt-Right to Court
October 8th, 2019
The threats are like a bad faucet, a ceaseless stream of invective and hatred. The pitter-patter is so constant that Robbie Kaplan has learned to tune it out; white noise.
Still, some pronouncements land harder than others. The ones that promise violence. The ones that mention her son. The ones that are too detailed, filled in with gruesome specifics. And the ones that leave just enough to the imagination. Like: “After this stupid kike whore loses this fraudulent lawsuit, we’re going to have a lot of fucking fun with her.”
It was mid-June, and months since Kaplan and her co-counsel Karen Dunn had filed a lawsuit against the white supremacists who’d swarmed Charlottesville, Virginia, in August 2017. In that time, Kaplan, who is Jewish, has grown accustomed to her neo-Nazi menaces. But even so, for her, this crossed a line. For one, the threat had been shared on Telegram, a messaging platform popular with the alt-right. And second, the person who posted it was none other than Christopher Cantwell, a famed internet white nationalist with a violent criminal record who also happens to be a defendant in Sines v. Kessler, Kaplan and Dunn’s suit. (Other defendants include Jason Kessler, Richard Spencer, Matthew Heimbach, and groups like Identity Evropa and the League of the South.)
The incident spurred Kaplan and Dunn to pursue sanctions against Cantwell, asking that the court order him to stop harassing not just Kaplan, but the plaintiffs as well. The motion is still pending. In the meantime, it’s at least cost Cantwell his representation. In a court filing, his now-former attorneys said they were at a “loss” over how to counter Kaplan’s claims.
When I meet Kaplan for the first time and ask about the threats, she almost smiles. She gets it; how much these men despise her. She’s a woman who happens to be both a lesbian and Jewish. Since the 2016 presidential election, she has worn a small star of David around her neck—a personal reminder to keep up the fight against hate in it all its nefarious forms.
When it became clear soon after that weekend in Charlottesville that there were survivors who wanted to seek justice in court, Kaplan decided to pursue the case. (It is now backed with support from Integrity First for America, an organization founded in 2017 that seeks to support public interest litigation. Amy Spitalnick, who was formerly the communications director to New York Attorney General Barbara Underwood, is IFA’s executive director.)
Her and Dunn's approach is unique, but the case doesn’t stand alone. There has been at least one trial in connection to Charlottesville; in June, the man who plowed his car into a group of counter-protestors and killed Heather Heyer was sentenced to life in prison. But the case that Kaplan and Dunn will argue has different aims. With it, IFA doesn’t just take a group of men to court. It puts the alt-right on trial.
Two years ago, hundreds of white supremacists marched on Charlottesville. Within 48 hours, an entire metropolis had been immobilized and one woman was dead. In the months that followed, the violence piled up. In Pittsburgh, the Tree of Life shooting claimed 11 lives, and a hate-fueled attack in El Paso left 22 people dead. Terror is chaotic; that’s a feature, not a bug. But the implementation of it has to be meticulous.
Kaplan understood that—how much time it would have taken the men who’d swarmed Charlottesville to plan and plot “Unite the Right,” as their event had been christened, the resources that have to be marshaled to incite violence. But still, she knew, too, that our cultural theories about “lone wolves” and crazed, impulsive madmen are durable. It wasn’t just that she wanted justice for the victims of Charlottesville, although she did and does; she wanted to illuminate the sophisticated structure of a resurgent white supremacist movement in America. She wanted to prove that the violence committed in Charlottesville had been purposeful and deliberate. In legal speak, well, Dunn explains it best: “If two people are members of a conspiracy, one will be liable for the acts of the other, when those acts were reasonably foreseeable.” In 2019 terms, Kaplan wanted the receipts.
That summer, Kaplan had opened up her own practice after more than two decades at Paul, Weiss, Rifkind, Wharton & Garrison, one of the most prestigious and formidable law firms in New York. She wanted to devote more time to public interest work; she is still best known as the woman who argued United States v. Windsor before the Supreme Court—the case that struck down parts of a federal law that banned same-sex marriage.
It was hectic, as the start of a new business tends to be. For the first month, Kaplan didn’t have an office. And less than two weeks after she at last moved into her own space, Charlottesville happened. The firm had six staffers and no furniture, but when President Donald Trump announced that he’d have a press conference to address the weekend’s events, Kaplan ordered pizza and invited the team to tune in. In retrospect, it wasn’t her best idea. People cried. One or two left the room. Trump had noted (after two other bungled statements) that there were “some very fine people” on both sides at the weekend’s rallies. It was terrible.
“Watching that, and in particular watching their reaction, I was like, ‘We have to do something about this,” she recalls. From her time at Paul, Weiss, Kaplan remembered a case that one of her mentors had led against a site called The Nuremberg Files. (“It always comes back to Nazis,” she says.)
It was the late nineties, and the internet was still new. But a group had uploaded “Wanted” photos of doctors who performed abortions to the site, with their names, home addresses, and license-plate numbers. Given a recent uptick in assassinations of abortion providers and attacks on clinics, the plaintiffs in the suit argued that the site was intended to, in the words of the New York Times, “stir up more violence.” But the defendants insisted that since the site wasn’t explicit with threats of bodily harm, the claims were a violation of their right to free speech. In the end, the site lost. The judgment awarded the plaintiffs $107 million. (The effect was only briefly salutary; in 2011, it was overturned on appeal.)
Still, Kaplan had a hunch that she could pursue a similar case against the organizers of “Unite the Right,” but she needed a statute to peg it to. So she picked up the phone and called her friend Dahlia Lithwick, a legal correspondent at Slate who had spent the previous 17 years in Charlottesville. (In a painful coincidence, Lithwick was due to move less than a week after the rallies.)
The women had discussed the situation in Charlottesville on and off for months. “It didn’t just happen,” Kaplan points out, of the rallies. The pressure had built up over the previous weeks, and Lithwick was scared.
“There had been two prior Nazi marches,” Lithwick remembers, plus a visit from the Ku Klux Klan. “It ate up the entire summer.” She and her husband were afraid for their kids and their neighbors. Charlottesville has just one synagogue, where their son had recently celebrated his bar mitzvah. “Robbie knew me well enough to know that I was really afraid by it.
After the march, one of the first calls Lithwick got was from Kaplan; that’s how fast she mobilized. “She called and said not just, ‘This is obscene and outrageous,’ but ‘I’m going to do something about it,’” Lithwick recalls.
Kaplan was on a plane within 48 hours of their conversation. She had no plan and a still-new business. But she didn’t hesitate.
Lithwick helped her find a temp space in Virginia. Then she dove into the work. The law, as Lithwick observes, is seen as a rather dispassionate construction. But Kaplan has never looked at it like that. The law is a tool, and she has the power to wield it. Lithwick tries to describe Kaplan’s crusade: “To be there in the weeks after, interviewing potential witnesses and hearing about what was for many of them the scariest thing that has ever happened in their lives, and to be able to take that and repurpose it for good—that was amazing.”
When Kaplan returned to New York she knew she needed to settle on a legal approach. It seemed to her that there could be an element of incitement, the argument on which the case against The Nuremberg Files site had rested. But it was more than that. She reasoned that on a fundamental level the men had conspired to commit violence themselves. In the end, she and her team dusted off a statute that even Lithwick admits seemed to her like “a bit of a longshot.”
It was “audacious,” Lithwick tells me now, impressed. It was the Ku Klux Klan Act of 1871.
The statute dates back to the post-Civil War Reconstruction period, when the government passed a slate of laws that, as Kaplan frames it, were for the most part meant to legislate what the government itself could and couldn’t do. But the Ku Klux Klan Act of 1871 takes aim at individual behavior; it outlaws extralegal violence and was codified to protect newly freed slaves from vigilante attacks.
“That’s when it clicked,” she said. “It very much seemed like he was going to try and kill as many people as possible.”
To hear survivors tell it, the law is as relevant now as it was then. In a recent interview with NPR, Liz Sines, a plaintiff, remembered the sound that the car made as it rolled into counter-protestors that weekend. “That’s when it clicked,” she said. “It very much seemed like he was going to try and kill as many people as possible.”
With that act on the books, Kaplan was confident that she had “a sound legal basis” to take the organizers to court. So this time she picked up the phone and called Karen Dunn. At the time, Kaplan didn’t know Dunn well but admired her work. Also, she knew Dunn had practiced in Virginia. A partner at Boies Schiller Flexner, Dunn has represented Uber, Beats, and Oracle. In 2016, she and Ron Klain prepped Hillary Clinton for the presidential debates. In 2012, the duo did the same for Barack Obama. (After Obama wavered in his first face off with Mitt Romney, Dunn reportedly walked up to then-candidate and said, “You need to punch him in the mouth!”) Dunn and Klain met over a decade ago, but even now his admiration seems to border on fandom. “There are definitely litigators for whom winning is the ultimate end game, and that's not Karen Dunn. She cares about issues. She cares about people. And she goes to fight for those things.” When I mention just how formidable I find her, Klain offers a (gentle) correction. He’s familiar with the "caricature" of Dunn as a warrior, who is “so tough and kicks ass.” It’s not that that’s inaccurate. “She is a force,” he says. “But she is also a person. As fearsome as I have seen her in fighting legal and political battles, I've seen her just as tender.”
As Kaplan remembers it, she laid out the case; its theories and its intentions. She asked Dunn if she would be interested in it, if she had the time to pursue it, if she wanted to join the cause. Dunn has a simpler recollection. “She said, ‘Do you want to sue Nazis with me? And I said, ‘Absolutely.’”
The women have been in near-constant communication ever since. “I think we make a formidable team,” Dunn tells me. And then: “It’s a question of who’s scarier—the Nazis or Robbie Kaplan and Karen Dunn?”
“There’s a certain…” Lithwick hesitates. How can she describe the partnership between Kaplan and Dunn? There’s Karen, all vim, vigor, and cut-to-the-chase intimidation. And then there’s Robbie—no less strategic, but a little more relaxed. “It’s like fire and ice,” Lithwick concludes, with a laugh.
In late March, I see what she means. We’re in Dunn’s office in D.C., as Dunn, Kaplan, and Spitalnick prepare for an event. Dunn fires off email after email, ducks into a conference room to take her calls, and at one point stares at me with a gaze so sharp I almost expect to find blood. Meanwhile, Kaplan points out the “schmutz” on her jacket and when a makeup artist tells her to move her face less, she grins. “That’s impossible.” Spitalnick just laughs.
“Each of them in their own right is a total force of nature, but put them together and it’s next level,” Lithwick says. The women complement each other. Their skill sets are unique. But it’s more than that. The secret to their success is that each allows the other to shine, secure in her lane. In interviews, the compliments flow. Kaplan admires how meticulous Dunn is and how committed. Dunn could go on and on about Kaplan’s vision. Spitalnick keeps them on track, on message, and sane.
“I do think there’s something to be said for female co-counsel relationships,” Dunn tells me later. “I’ve worked in partnership with men, who I have had great relationships with. But when you work with other women, it’s like everyone's falling all over themselves to give each other credit.” Their email chain is an endless stream of praise, punctuated with frequent variations on, “I agree.” Dunn estimates the women do agree with each other 98 percent of the time. And given the nature of the work, consensus helps. Both Kaplan and Dunn have other jobs and families to attend to. Also, landmark civil rights cases? Those take not just time, but emotional fortitude.
Kaplan and Dunn’s filed complaint alleges in great detail just how the weekend was planned—and who oversaw it and how. It notes one of the defendants has served prison time for planning to bomb Jewish- and black-owned businesses. It quotes Andrew Anglin, who runs the world’s most prominent neo-Nazi website, The Daily Stormer, and who is also a defendant; weeks before Charlottesville, he posted a PSA in which he foretold an “age of ultraviolence.” It cites a post on The Daily Stormer that was more explicit: “Next stop: Charlottesville, VA. Final stop: Auschwitz.”
The complaint goes on, a record of the events that terrorized the city. It recalls the chants: “Blood and soil” and “Jews will not replace us.” It cites reports that Robert “Azzmador” Ray, a defendant, shouted: “The heat here is nothing compared to what you’re going to get in the ovens!”
Of course, it sobers Kaplan—the sheer hate to which she has to bear witness and endure herself. She won’t get into specifics, but she allows that there are “precautions taken” when she’s in Charlottesville with the plaintiffs. “And when we’re there for trial, for sure there will be precautions taken.” (The women expect the case to go to trial in 2020.) But Dunn notes that she and Kaplan can go back and forth between their normal lives and this case. At least to an extent. For the plaintiffs—a group of almost a dozen that includes parents, students, and a Christian minister—it’s even harder to find respite. “These are people who believe in how critical it is to stand up, holding accountable the people who did this. I just admire that so much,” she explains. “They still live in Charlottesville, right? They live with the memories and the threats and the injuries every single day.”
Later, she adds, “Charlottesville has become, at this point, the name of an event, not the name of a city. And because it’s become so familiar to many people in the country, I think it will be surprising how much of the story to be told at trial will be new to them. I think part of that is the planning that led up to the events. But I think another important part of that is who the plaintiffs are. What their stories are and the extent of the harm that they suffered at the time and continue to suffer from what happened.”
To cope, Kaplan has held fast to her dark sense of humor. She has to. Sometimes she spends hours at a time with the most hateful transcripts and documents and chat archives she’s ever seen—tons of them filled with threats lobbed at people like her. (Some directed at her.) More than once, she’s fantasized about an idea she has for a book. Not some memoir of this experience or a deep dive into the rise of a new white supremacist movement, but a beautiful, artful coffee table book called Things Nazis Also Say.
Because in between missives that call for death to all Jews and the rise of a pure white race are notes with…reminders to pack sandwiches and water for the rallies and plans about how best to carpool. The one that solicited advice on how to “sew a swastika onto a flag” stands out as a representative example; Etsy for the alt-right.
The case comes at a time when antisemitic and race-based hate crimes are on the rise, and the federal government has never seemed less inclined to take action to counter it. Given his base and his Twitter presence, Trump himself presents an obvious concern. But, as Vice News reported in March, so does the rest of his administration. His Department of Justice has pursued 60 percent fewer civil rights cases than the Obama administration did and 50 percent fewer than the Bush administration did.
When I was a kid, I went through this Holocaust obsession. I would read a book and lie up at night, thinking about it. I remember thinking, like, ‘What would have done? Would I have had the guts to stand up? I’m going to go down fighting.”
Last month, the Department of Homeland Security did announce that it would recognize white nationalist terror from within the United States as a significant threat, a far overdue break with a previous approach that focused for the most part on foreign groups like ISIS and al Qaeda. That decision came after a white nationalist drove to a Walmart in El Paso, Texas, to target Hispanic men, women, and children. He killed almost two dozen people.
It’s a positive and essential development, but one that won’t matter much if the federal government doesn’t transform statements and pledges into action. In a report in the New York Times published last week, some officials expressed skepticism that “the full weight of federal law enforcement” would be used “to give bigoted domestic terrorism the attention it deserves.”
In that vacuum Kaplan, Dunn, and Spitalnick have picked up the slack; almost poetic given that both Dunn and Kaplan were floated as names in a prospective Clinton cabinet had she won.
“There is a clear crisis of right-wing extremism that is not just people sharing these beliefs and talking about them, but actually acting on them in a violent way,” Spitalnick explains. And without cases like theirs to focus attention, the problem just metastasizes—spread across a vast, dark internet, and ignored in a media climate that rushes to cover events but can sometimes miss trends. Spitalnick continues: “The news moves so fast right now that the fact that neo-Nazis and white supremacists stormed a major American city and murdered someone and injured countless others is off of most people’s radar screen.”
Kaplan, at least, takes the historical view. She is reluctant to make comparisons to the Holocaust; she doesn’t want to, in her own words, “go very, very low.” But it strikes her now: “When I was a kid, I went through this Holocaust obsession. I would read a book and lie up at night, thinking about it. I remember thinking, like, ‘What would have done? Would I have had the guts to stand up? I’m going to go down fighting.”
Spitalnick, whose grandmother survived the Holocaust, echoes her: “It has been useful to me to step back and think about this in that context. If there’s anything to do now, this is it.”
Of course, Kaplan’s conviction depends on a legal process that works. Laws that are enforceable. Justice, ethics, the Constitution. She still believes in ours. Dunn does, too: “For Robbie and me, it is the great joy of our profession to figure out the legal argument.” And Lithwick tells me she thinks one of the reasons she and Kaplan are friends is because even in this moment, both maintain that the law has real power. When she looks back now on that terrible summer in Charlottesville, Lithwick thinks it was “a natural experiment in what would happen if the law just didn’t provide the backstop it’s meant to. In real time, it was a shake-to-the-core realization.”
But Kaplan renewed her faith. We live in an era when words can feel meaningless, when actions are taken and met no consequences. When a fuss is kicked up on Twitter, and then the perpetrators walk free, or sometimes get a promotion. “Robbie and Karen,” Lithwick insists, real emotion in her voice, “have pierced the meta narrative that nothing matters. They’ve made something matter.” That’ll be true whether Kaplan, Dunn, and Spitalnick win or lose. But when I put it to her, Kaplan doesn’t equivocate: “We’re going to win. There’s no question.”
Mattie Kahn is Glamour’s senior culture editor.