Lark TurnerLast week, a complaint was filed against the organizers of the Charlottesville rally that left one woman dead and many others injured.  The lawsuit alleges that the rally organizers violated Reconstruction Era statutes and state laws by organizing a rally intended to result in violence.  The lawsuit has been much covered; here, we wanted to quickly highlight the (too) easy takes on the lawsuit, and what we think is a better (and more nuanced) take.

As Floyd Abrams explained, the defendants “will certainly claim that everything they did, everything they said, and every action that they took was protected by the First Amendment.”  Alan Dershowitz immediately jumped to the conclusion that the defendants would be correct: “The First Amendment was designed to protect this kind of unpopular and hateful expression.”

That reflects one take on the lawsuit, and what we think it is a (too) easy take—that the suit merely challenges the decision to organize a hateful rally that would spew anti-semitic, homophobic, racist words.

But that’s not what the suit alleges, as the second page (and fourth and fifth paragraphs) of the complaint make that clear:

[T]he violence in Charlottesville was no accident…. Under the pretext of a “rally,” which they termed “Unite the Right,” Defendants spent months carefully coordinating their efforts…  The violence, suffering, and emotional distress that occurred in Charlottesville was a direct, intended, and foreseeable result of Defendants’ unlawful conspiracy.  It was all according to plan—a plan they spent months working out and whose implementation they actively oversaw as events unfolded on the ground.

Let’s assume for a second that the allegations in the complaint are sufficient to support that inference—namely, that the defendants planned there to be violence as a result of the rally, and intended there to be violence as a result of the rally.  If that’s true, then there’s no First Amendment problem with the lawsuit.  It’s hornbook law that the First Amendment doesn’t protect true threats.  The First Amendment protects hate speech, a proposition the plaintiffs aren’t challenging.  But it doesn’t protect the words that make arrangements for actual violence to occur, and that’s what the plaintiffs are alleging.

The harder question is whether the plaintiffs’ allegations establish that the defendants did, in fact, intend to foment violence at the Charlottesville rally.  The fact that the rally wreaked horrible violence in Charlottesville doesn’t mean the defendants intended it to occur.  The fact that the violence did happen gives more credence to the plaintiffs’ allegation that the defendants intended the violence to happen, but it’s not sufficient to establish that allegation.

Here too, in assessing whether the plaintiffs’ factual allegations plausibly support their claim that the defendants intended to foment violence in Charlottesville, there are (too) easy takes, and what we think is a better, more realistic approach to the lawsuit.

The easy takes—and the ones we expect will make appearances over the coming weeks—will include some combination of the following.  One would be to adopt a kind of divide-and-conquer approach:  Look at every message, every video, every post, every image, and every statement in isolation, rather than together.  It’s easier to write off each individual statement as “speech without any intended or expected consequences” if you refuse to look at all of the statements each defendant made, or responded to, together.  But as any interpreter would tell you, words have meaning in light of their context, and we think the better approach is to assess the statements collectively rather than in isolation.

The other take would be to adopt somewhat strained interpretations of all of the statements (individually or in the aggregate), and write them off as exaggerations or (worse) humor.  Jason Steed has tweeted, written, and studied extensively the social function of humor, and what humor communicates.  We won’t add to his takes here, except to say that, as Steed notes, humor “is always in social context”: It “form[s] groups” and “send … message[s].”  The question here is whether it sent the message (and was intended to send the message) that violence should happen.

Moreover, while it is certainly possible to interpret every single statement, image, and message in the complaint to mean something other than the statements implicitly suggest or explicitly urge, we don’t think that’s the right approach either.  Interpreting the statements requires serious attention to what was said, when it was said, what the speaker had previously affirmed or signaled their agreement with, and a host of other considerations.

The allegations in the complaint are both stunning in their extensiveness and detail, and also more than a little terrifying in the amount of coordination they reveal.

We haven’t digested everything to come to a conclusion as to whether each of the named defendants did intend to foment violence in Charlottesville.  But the plaintiffs’ allegations are extensive and methodical, and people shouldn’t write off this suit as barred by the First Amendment based on over-generalizations or over-wrought interpretations of their allegations.  The suit is a serious one, and it’s one we will be watching.