Confessions of a Free Speech Lawyer

Charlottesville and the Politics of Hate

Rodney A. Smolla

• Publisher: Cornell University Press
• Year: 2020
• ISBN:
  9781501749667
• Topic: Social Sciences
• Subtopic: Discrimination & Race Relations
• Index: Social Sciences

In the personal and frank Confessions of a Free Speech Lawyer, Rodney A. Smolla offers an insider's view on the violent confrontations in Charlottesville during the "summer of hate." Blending memoir, courtroom drama, and a consideration of the unhealed wound of racism in our society, he shines a light on the conflict between the value of free speech and the protection of civil rights.

Smolla has spent his career in the thick of these tempestuous and fraught issues, from acting as lead counsel in a famous Supreme Court decision challenging Virginia's law against burning crosses, to serving as co-counsel in a libel suit brought by a fraternity against Rolling Stone magazine for publishing an article alleging that one of the fraternity's initiation rituals included gang rape. Smolla has also been active as a university leader, serving as dean of three law schools and president of one and railing against hate speech and sexual assault on US campuses.

Well before the tiki torches cast their ominous shadows across the nation, the city of Charlottesville sought to relocate the Unite the Right rally; Smolla was approached to represent the alt-right groups. Though he declined, he came to wonder what his history of advocacy had wrought. Feeling unsettlingly complicit, he joined the Charlottesville Task Force, and he realized that the events that transpired there had meaning and resonance far beyond a singular time and place. Why, he wonders, has one of our foundational rights created a land in which such tragic clashes happen all too frequently?

1

A CALL FROM THE TASK FORCE

I received a call from the governor’s office in Richmond, Virginia, on the Monday following Labor Day weekend in September 2017. The call came from Shannon Dion, who was working in the office of Governor Terry McAuliffe. Dion had been my student at the University of Richmond School of Law, where I had served as the school’s dean. She was phoning on behalf of the governor and Virginia’s secretary of public safety, Brian Moran. Governor McAuliffe had created a governor’s task force to study the racial violence in the city of Charlottesville during the summer of 2017. That violence had claimed the life of Heather Heyer on August 12, when a white supremacist, James Alex Fields Jr., slammed his speeding car pell-mell into a crowd of counterprotesters confronting a “Unite the Right” rally.

The work of the task force, Dion explained, would require it to delve deeply in the constitutional protections of freedom of speech and freedom of assembly and the rules of engagement governing what society could or could not do when confronted with racial supremacist groups rallying in a city, surrounded by opposing groups determined to confront and shout down the messages of racism and hate. The governor and the secretary were hoping I would be willing to serve as an expert consultant to the task force on those First Amendment rules of engagement. The request came on very short notice. The task force would commence its meetings in just two weeks. But I instantly agreed to serve, assuring Dion that I would do whatever needed to adjust my schedule to travel from Delaware, where I lived and worked as dean of the Delaware Law School, to travel to Richmond, Virginia’s capital, for the task force hearings.1

Dion knew me as a law professor and law school dean and as a constitutional law litigator and scholar. When we hung up on the call, I wondered if she remembered that I had been the lead attorney in a famous free speech case involving vicious racist hate speech, Virginia v. Black.2 The case involved a cross-burning rally of the Ku Klux Klan in rural western Virginia in 1998, and a second cross-burning incident in Virginia Beach, Virginia, also in 1998, in the yard of an African American, James Jubilee. The case went all the way to the Supreme Court of the United States, where I represented and argued on behalf of the racist cross-burners, asserting that the First Amendment protected their right to brandish symbols of racism, though it did not protect actual incitement to violence, or true threats intended to intimidate victims.

I had watched with horror the television images of racist violence in Charlottesville the month before. With so much of the nation, I had been shocked and traumatized by the gruesome video of James Fields slamming his car into the crowd of innocent counterprotesters, murdering Heather Heyer. Not so much with the rest of the nation, however, I felt special pangs of guilt, doubt, and remorse over the violence that engulfed Charlottesville, and the death of Heyer. For I had personally argued the Supreme Court case fighting for the rights of racist groups like the Ku Klux Klan and American neo-Nazis to spread their bile on the streets and parks of Virginia. What had my advocacy wrought? I felt vaguely complicit in the hate speech, in the violence, in the carnage and the death.

In accepting the invitation to join the efforts of the task force, I vowed to myself that I would check all preconceptions and prejudices and approach the effort with an open mind about the meaning of freedom of speech and assembly and the tensions between our American commitment to freedom of expression and our concurrent commitments to equality and human dignity. It was in that spirit that I approached the work of the Charlottesville Task Force. It was in that spirit that I came to see that the events of Charlottesville in the superheated, hateful summer of 2017 had meaning and resonance far beyond that time and place. This story is the chronicle of my exploration of that meaning and resonance.

A few months before I received Dion’s call, I had received another call, inviting me to represent Jason Kessler, one of the leaders of the alt-right supremacists who had organized the Unite the Right rally that led to Heather Heyer’s death. In August 2017, just days before the scheduled Unite the Right rally, the City of Charlottesville sought to move the rally from the streets and parks in downtown Charlottesville, near the University of Virginia campus, to McIntire Park, a spacious forest preserve and recreational park on the outskirts of the city. Kessler and Richard Spencer, the national alt-right leader and driving force behind the Unite the Right rally, did not want the rally moved. The two monuments to the Confederate generals Robert E. Lee and Stonewall Jackson were in the city’s downtown parks. One of the announced purposes of the Unite the Right rally was to fight attempts by Charlottesville to remove or relocate the monuments. Kessler and Spencer, both graduates of the University of Virginia, also wanted to march through the UVA campus in a kind of “in your face” defiance of the UVA community, which they perceived as captured by radical progressive political correctness.

Why would I be called to represent the likes of Kessler and Spencer? For starters, I had been a stalwart free speech lawyer who had represented racists before—the Ku Klux Klan, for god’s sake—in Virginia v. Black, all the way to the Supreme Court. I also had long-standing ties to two nonprofits in Virginia that often brought litigation on free speech issues: the American Civil Liberties Union of Virginia, and the Rutherford Institute. I had just finished writing an amicus curiae (friend of the court) brief on behalf of the Virginia ACLU and the Rutherford Institute in the Supreme Court of Virginia, in a case involving the free speech rights of judges to speak on issues of public concern. The Virginia ACLU and the Rutherford Institute volunteered to represent Kessler in his lawsuit against Charlottesville.

When I was approached by the legal director of the Virginia ACLU, Leslie Chambers Mehta, I was in the midst of a family vacation and preparing for the wedding of my eldest daughter. This was an emergency request for legal assistance, and I had not been following the breaking day-by-day and hour-by-hour events. Based on my outsider’s view from the news coverage of the pending Unite the Right rally, and my own knowledge of the topography of Charlottesville, it was very difficult to make any clean and clear judgment as to whether the efforts of the city to move the rally were or were not legally permissible. I had often taken my children, including my daughter who was about to have her wedding, to McIntire Park. I knew the park well and could see why, given the pressure-cooker atmosphere building in Charlottesville, there was some commonsense logic to moving the entire event to McIntire Park. I also had some gauzy, inarticulate, vague intuition that something did not seem right—though at the time I was still quite far from any thoughtful understanding of what was bothering me. I took a pass, telling the Virginia ACLU that I would not participate as counsel for Kessler and his group.

The decision not to take the case had consequences for me. It kept me at an objective distance from the events, which would ultimately keep me free to accept the later offer from the office of Governor McAuliffe to participate, as a disinterested scholarly expert, offering testimony and advice to the task force that was convened to review the Charlottesville events.

And it kept me free to write this book.

All of us are constantly influenced by what’s on the air and in the air. My exploration for the “meaning of Charlottesville” was constantly influenced by all that was in and on the air as I worked. As I was writing this book in 2018, Spike Lee, a visionary movie director, released a film masterpiece, BlacKkKlansman. The movie tells the true story of an African American police detective who managed to infiltrate the Ku Klux Klan in Colorado Springs, Colorado, in the 1970s. The white supremacist David Duke is featured prominently as the celebrity supremacist who is duped by the black detective. Duke also features prominently in this book as the precursor to the next generation of supremacists who orchestrated the bloody confrontations in Charlottesville in the summer of 2017. Spike Lee chose to end his movie with footage from Charlottesville in 2017, including the carnage that led to the death of Heather Heyer.

BlacKkKlansman exhibits Spike Lee’s masterly ability to tell a moral tale without getting in your face. It is not polemical, or manipulative, or dishonest, artistically or intellectually. Lee’s decision to cut to images of Charlottesville at the end of his film speaks for itself. It reminded me that the dark comedy he has conjured from events in the 1970s, in which a clever black cop dupes the white supremacists of that day, remains the stuff of dark tragedy at large in America today.

The year 2018 also marked the fiftieth anniversary of the death of Martin Luther King Jr., who was struck down by an assassin’s bullet in Memphis on April 4, 1968. I was invited to partner with Rev. John G. Moore of Wilmington, Delaware, to stage a creative event commemorating Dr. King’s death. Moore had perfected performances in which he reen-acted King’s many famous speeches. His “act” was brilliant. As I watched him demonstrate his performance, I felt as if Martin Luther King had been brought back from the past and stood before me. The plan for our program was somewhat edgy. I would “interview” Dr. King, played by Moore, who would respond in character, borrowing as much as possible from King’s own words. It was part historical drama, part theater improv. I was researching for our performance as I was writing this book and in the process became fixed on one moment in King’s life.

King stirred the conscience of the nation from the steps of the Lincoln Memorial on the Washington Mall in 1963, declaring in a tremolo voice that seemed transported from the Promised Land, “I have a dream that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’” Only eighteen days after King’s “I Have a Dream” speech, four African American teenage girls, Addie Mae Collins, Denise McNair, Carole Robertson, and Cynthia Wesley, were killed in a bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama, their dreams silenced and their families shattered in the screams and shrapnel of a race-hate bomb. King descended from the Lincoln Memorial highs to the Birmingham mourning depths.

In his eulogy for the slain girls, King challenged the grieving congregation to consider not who killed the four girls, but what killed them. The nation would ask both questions when King himself was cut down. I, however, could not stop asking simply who killed Heather Heyer in Charlottesville on August 17, 2017, but what killed her. And as I explored both the who and the what, I was constantly haunted by the nightmare that perhaps among the who in the cast of those complicit was me. And with that nightmare, its companion night-terror, that the what included my many blind spots on issues of American history, culture, and law on matters touching the intersection of freedom of speech and “identity” in all its complex forms—race, gender, sexuality, religion, national origin, citizenship, and politics.

As these thoughts were swirling, I happened to attend a program in my role as dean of the Delaware Law School, sponsored by the law school’s Black Law Students Association, on the writings and speeches of James Baldwin, as reflected in a posthumously published book, and then a film, I Am Not Your Negro.3 In a 1985 speech at Cambridge University, Baldwin may have shocked his audience in criticizing Attorney General Robert Kennedy’s suggestion that in forty years, America might have a black president. Baldwin noted that to white people, Kennedy’s observation probably seemed like a very emancipated statement. For me—a white civil rights and civil liberties lawyer reflecting on what Kennedy said—Kennedy’s notion would indeed seem emancipated, and even prophetic, given the election of President Barack Obama. Yet Baldwin warned that many black people saw it differently. White people, he observed, were not in Harlem to sample the reaction to Kennedy’s statement. “They did not hear (and possibly will never hear) the laughter and the bitterness and the scorn with which this statement was greeted,” Baldwin said. “Bobby Kennedy only got here yesterday and now he’s already on his way to the presidency,” Baldwin continued. “We’ve been here for four hundred years and now he tells us that maybe in forty years, if you’re good, we may let you become president.”4 Baldwin’s remarks haunted me as I considered how I, thinking myself enlightened on issues of freedom of speech and emancipated on issues of race, could not entirely perceive the crosscurrents of perception and emotion spurred by images of Ku Klux Klan members burning a cross, or a monument to Confederate general Robert E. Lee placed in prominent display in the center of a southern city.

The long hot 2017 summer in Charlottesville was also the first summer of the presidency of Donald Trump, and certainly not the winter of his opponents’ discontent. Many of those who reacted with fear and loathing at the election of President Trump interpreted his election as a rear-guard yearning for America’s racist and xenophobic past, a yearning for an America in which “greater” is code for “whiter,” conjuring images of ethno-state revivals of America in 1924 or Germany in 1933. The chants of the newly coined alt-right movement, shouting slogans such as “you will not replace us” or “blood and soil,” were perceived in some quarters as surrogates for Trump’s own subliminal (and at times explicit) messages of racism and xenophobia.5

My ruminations naturally included reflections on the multiple roles I have played as a professional, including lawyer, scholar, teacher, and university administrator. The Unite the Right rally was not just a rally in the city of Charlottesville. It was a rally at the University of Virginia. I’d spent the bulk of my professional career on American college and university campuses, and I was aware that the crossfire hurricane of conflict that descended on Charlottesville in 2017 spun off multiple tornados on the campus of that great university.

The University of Virginia did not admit women until the 1970s, when ordered to cease its all-male admissions policy by a federal court. UVA would become the epicenter of the American maelstrom over campus gender politics when an article published in Rolling Stone magazine described a brutal ritual gang rape of a UVA freshman at a campus fraternity event. I was a lawyer in the ensuing litigation, representing the fraternity. The story accusing the fraternity turned out to be entirely false—a fabrication. The painful raw-nerve firestorm ignited by the immediate reaction to the story, however, was entirely real.

For all this, however, Charlottesville and the University of Virginia were also, by 2017, among the American bastions of left-wing progressive liberal activist opposition to racism, sexism, xenophobia, and homophobia. Charlottesville and the University of Virginia were claiming a seat next to other famous American campuses, like the University of California at Berkeley, or Yale, as ardently active beacons of the rights of the oppressed and dispossessed. The mayor of Charlottesville declared the city the capital of the progressive resistance. It stood for the rights of people of color, religious minorities, gay, lesbian, bisexual, and transgender persons—the champion of all colors and causes that the supremacists of the alt-right despised. Here were fear and loathing in Charlottesville, fueled from the right and the left, isobar highs and lows of love and hate, generating a perfect storm.

If Charlottesville may be defined as a crossroads for politics, it has also proven a ripe environment for creativity. It has been home to musicians, actors, and writers, from Dave Matthews to Sissy Spacek, Edgar Allan Poe to William Faulkner to John Grisham. It has been home to great eccentrics, including Anna Anderson, the putative sole survivor of the massacre of the Romanov royal family during the Russian Revolution, who claimed to be the Grand Duchess Anastasia. (We now know that her claim to be Anastasia was concocted.)

William Faulkner lived in Charlottesville for five years, from 1957 until his death in 1962. In 1957 and 1958 he was the University of Virginia’s first Balch Writer in Residence. When he strolled the university’s famous “Academical Village” in the late 1950s, sporting his signature collegiate tweed suit, the famous literary gentleman from Mississippi had already won the Nobel Prize for literature, a Pulitzer Prize, and two National Book Awards. While some at stately UVA had feared bringing him to the campus—Faulkner was as notorious for the hardness of his drinking as he was acclaimed for the fluidity of his prose—he did his duties to his students and his co...

Table of contents

• Acknowledgments
• 1. A Call from the Task Force
• 2. The Charleston Massacre
• 3. Becoming Richard Spencer
• 4. Reverend Edwards
• 5. The Charlottesville Monuments
• 6. Blut und Boden
• 7. Mr. Jefferson’s University
• 8. Kessler v. Bellamy
• 9. The Monuments Debate
• 10. Competing Conceptions of Free Speech
• 11. May Days
• 12. Cue the Klan—Stage Right
• 13. The Rise of the Marketplace
• 14. Cue the Counterprotesters—Stage Left
• 15. A Rolling Stone Gathers No Facts
• 16. The Marketplace Doubles Down
• 17. The Day of the Klan
• 18. When Speech Advances Civil Rights
• 19. Duke and the Disciples
• 20. The Russian Connection
• 21. A Call to Conscience
• 22. Preparations
• 23. The Day of the Cross
• 24. The Idea of the University
• 25. Heckler’s Veto
• 26. Channels of Communication
• 27. Rednecks and Saint Paul
• 28. The Lawn and the Rotunda
• 29. Bloodshed
• 30. Aftermath
• Notes
• Index