What’s already publicly available suggests Kaplan and co-counsel’s biggest allies may be the defendants themselves—or their past selves, given how openly they communicated their intent to inspire, commit, or support violence.
[W]ell before the case was filed, a body of evidence was already public that at least seemed to suggest a conspiracy. In advance of the rally, several of its leaders blithely posted instructions for the protest on their social media accounts, including Facebook, Twitter and a chatting application called Discord. On Aug. 10, the day before the march, someone leaked a trove of messages from Discord to the alternative media website Unicorn Riot, which ultimately published them online without naming the source.
The defendants’ first-line defense is the First Amendment: they’d like to hide behind rights to free speech, association, and assembly. That’s as nonsensical as the Ocean’s Eleven crew asserting a First Amendment defense to fight conspiracy charges. This suit is not about what these defendants said but what they used words to do.
Anticipating the possibility that their First Amendment argument falls apart, the defendants’ second argument appears to be more political than legal.
The defendants — an array of neo-Nazis, white identitarians and old-line pro-Confederates — have ridiculed the charges as an act of “lawfare” maliciously intended to silence them and destroy them financially.
“The goal here is to break us and keep us from taking to the streets,” said Jeff Schoep, the leader of the National Socialist Movement. “That should concern all Americans, no matter where you stand on the political spectrum.”
Take a moment to note that the New York Times uses the term “white identitarian.” Is it more palatable than “white supremacist”? The latter is the apter descriptor, not to mention composed of actual dictionary-recognized words.
The next major milestone: surviving defendants’ initial sallies. The defendants, whose number includes the notorious (and odious) Richard Spencer, have filed motions to dismiss for “failure to state a claim,” so now it’s up to the court to decide whether the case will proceed. The rule under which the defendants lodged objections rarely works, so expect this round of filings to do no more than buy them time.