Quick answer — “Not likely.”
On August 12, 2017, Charlottesville resident Jason Kessler staged his “Unite the Right” rally, featuring a star-studded lineup of white nationalist and neo-Nazi speakers. The rally was expected to start at 12 noon. At about 11:35 AM a battle broke out on one side of Emancipation Park; the State Police declared an unlawful assembly, and they cleared the Park. The neo-Nazi crowd — guesstimated by some observers to be around 600 in the park, and probably about as many counter-protesters in Market Street — then dispersed, many of them going up to McIntire Park, where at least 100 or so were addressed by Richard Spencer and David Duke, among others. At about 2:30 PM, a grey Dodge registered to James Alex Fields, Jr., drove down a side street and rammed into a crowd of counter-protesters; it hit the rear of a stopped car at high speed, then backed up at high speed and tried to get away. The Dodge, its front bumper hanging off the car, was stopped about a mile away, and Fields was arrested. 32-year-old Heather Heyer died, and 19 others were injured, when the car slammed into the crowd.
In the past 36 hours, I have been asked frequently two related questions:
1. Can the rally organizers or speakers be sued for the injuries inflicted in the crash? and
2. Can the rally organizers or speakers be charged criminally with murder, or conspiracy to commit murder?
I’ll get to the civil liability issue in a few days, but first I want to turn to the two-part question of criminal exposure. Can the organizer(s) of the Unite the Right rally be charged with murder in connection with the death of Heather Heyer, in addition to James Alex Fields, Jr., the apparent driver of the car that killed her? A preview — the answer to that question is “based on what I know now, highly unlikely.”
We need to look at the principles of incitement before we turn to whether charges might be brought against any other person than the person who directly caused the injury. After that, we can talk about principles of enterprise liability (conspiracy, accessory before the fact, etc.) in answering the question more completely in another post.
First, some history.
When the United States entered World War I, the draft was begun. Charles Schenck was tried for violating the Espionage Act, for encouraging young men to refuse the draft. In a time of war, this offended the Supreme Court, and it upheld Schenck’s conviction, using two phrases that have persisted in the common understanding of the First Amendment even though they have long since been repudiated as workable standards:
Neither of these phrases has much force any more. For example, current thinking is that it is no crime to “shout fire in a theater” unless doing so actually causes a panic, in which case what we are punishing is not the act of shouting fire, but the act of intentionally causing a panic. While it seems like a picky point, it is important — we are not punishing the speech; we are punishing the intentional causing of the panic.
And the phrase “clear and present danger” gets used a lot, but that phrase has to be considered in terms of how it was modified over the years. About 8 months after Justice Holmes wrote the majority opinion in Schenck, he wrote a dissent that revealed a desire to limit the legislative authority that he approved in Schenck:
It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.
A related doctrine is the so-called “fighting words” doctrine.
A state may punish those words “which by their very utterance … tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). The cases make clear that what is not covered is illegal speech that gets listeners excited, or passionate, or angry. What is intended is very specific encouragement of immediate (not tomorrow — but right now) violence. So if a speaker speaks all manner of odious thoughts that cause a listener to become angry and to want to commit an act of violence, that is not enough to constitute incitement.
Note that all three of these cases — Schenck, Brandenburg and Chaplinsky — dealt with statutes that were specifically about the content of speech. None of them dealt with the situation of a general criminal statute. This will become important in Part Two of this discussion.
Turning attention to August 12, and the question of whether any organizer or speaker at the Unite the Right rally could be charged with murder along with James Alex Field, at this point we don’t even know if Fields even attended the McIntire Park speeches. I know of no evidence that he heard any particular exhortation to commit any act of violence. But let’s assume, for the sake of illustration, that he did attend the rally, and that he heard the speeches. Here are some examples of exhortations that would not be actionable:
- “The Antifa are vermin.”
- “The Fuhrer was right, but he didn’t live long enough to accomplish the mission. We need to finish the mission.”
- “The nigger should be returned to Africa, the Jew returned to Israel.” (See Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).
- “Someone should punch those Antifa bastards in the nose.”
- “We need a Westminster Bridge solution here.” (A reference to the incident in which Khalid Masood drove a truck on the sidewalk of the Westminster Bridge in June, killing five pedestrians and then a law enforcement officer).
- “If, some time in the coming week, you should see someone with a Bernie sticker on the back of their car, and you decide that their bumper needs to be rearranged, feel free.”
- “Trust-fund liberals are a drag on society, and they should all be killed.”
Suppose there was evidence that Fields had heard one of the speakers at McIntire Park make a statement that was really a direct incitement — like “I want you all to leave and go jump in your car and go mow down some antifas.” That is about how specific the incitement needs to be — general expressions that whip up passions don’t count. And it seems rather unlikely that any speaker got that specific. And remember that general “we hate antifas” is not enough.
Tomorrow we can talk about the criminal law topics of conspiracy, concert of action and being an accessory before the fact.
