Charlottesville and the Politics of Hate
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.
Continue below for an excerpt from the book’s first chapter.
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 common-sense 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.
