November 18, 2021 | Reading Time: 5 minutes
A 150-year-old anti-Klan law is being used in lawsuit against organizers of Unite the Right
By using the Ku Klux Klan Act, or the Enforcement Act of 1871, the suit links the alt-right to a century and a half of white violence.
Organizers of the 2017 Unite the Right Rally in Charlottesville are on trial for conspiracy to commit racially motivated violence in the federal lawsuit Sines v. Kessler brought by Integrity First For America.
The stated goals of the rally were to unite various factions of alt-right and neo-nazi groups to express racism and antisemitism but also to oppose the removal of a Robert E. Lee statue. The past few years have seen a strong backlash to President Obama’s presidency and a white panic reaction to America’s historical record becoming more accurate and inclusive. In a fitting response to their attempts to protect historical whitewashing, the men are charged under a 150-year-old federal law passed to disband the first the Ku Klux Klan.
This trial should be seen as an important response to the alt-right movement, but has received a fraction of the coverage and attention of the Rittenhouse trial.
In 2017, there was a growing movement to remove historical monuments partially in response to the Charleston church massacre by white supremacist Dylann Roof in 2015. Roof had been radicalized by white supremacist websites and taken pictures with confederate symbols. He stated he wanted to start a race war before murdering nine people at the Holy City’s historic Emanuel A.M.E. Church.
While many objected to the removal of confederate monuments because they were supposedly historically significant, those objections ignored what the actual historical significance was. Most statues weren’t built after the Civil War as a monument to fallen soldiers, but instead were built years later during moments of racial tension.
Many were built in the early 1900s during Jim Crow. Charlottesville’s Lee statue was erected in 1924 while others were built in response to the civil rights movement in the 1950s and 1960s. These statues were clearly built to literally memorialize white supremacy in stone.
Monuments are rarely about history but instead about national myth-making. Consider how many more statues we have to soldiers than to activists. Monuments by definition don’t present a nuanced historical analysis but instead mythic heroic image. When we protect confederate monuments we protect the mythos of the confederacy.
The Ku Klux Klan Act was passed by congress after President Grant requested legislation to help address the reports of widespread racial threats in the South. This legislation was necessary to give him authority to intervene in state-level unrest.
This commemoration of white supremacy and slave owners are what the Unite the Right Rally came out to protect in August 2017. They were protesting the decision of the Charlottesville City Council to remove the Robert E. Lee statue. Emboldened by Trump, neo-confederates, neo-nazis, white nationalists, klansmen, the alt-right, and even right-wing militias showed up brandishing swastikas, confederate flags, weapons and hate speech.
Earlier Richard Spencer organized a nighttime rally to protest the statue’s removal. Alt-right groups brandished tiki torches and shouted “Jews will not replace us.” There were violent clashes with counter-protestors and self-identified white supremacist James Alex Fields drove his car into a group of crowd, killing Heather Heyer.
James Alex Fields was the only person who faced criminal charges, but in 2018 Integrity First For America brought a civil suit on behalf of nine plaintiffs against 25 neo-nazi organizers of the rally, including Richard Spencer, Jason Kessler, Andrew Anglin, Christopher Cantwell and multiple KKK groups. This lawsuit is attempting to hold these organizers responsible for conspiring to incite racially motivated violence leading to injuries. By using the Ku Klux Klan Act, or the Enforcement Act of 1871, the lawsuit links the Alt Right in Charlottesville to 150 years of white supremacist violence.
The Ku Klux Klan Act was passed by congress after President Grant requested legislation to help address the reports of widespread racial threats in the South. This legislation was necessary to give him authority to intervene in state-level unrest. It also included provisions to bring federal civil suits against those depriving others of civil rights.
This particular provision has been codified into 42 U.S. Code § 1983 and is used as a civil-rights enforcement statute. The use of the act was limited after the Supreme Court required the involvement of “state action” in limiting someone’s civil rights in the Civil Rights Cases in 1883. However, the Supreme Court revived the Enforcement Act in Monroe v. Pape in 1961. After the murders of civil rights activists in Mississippi, the FBI used the Ku Klux Klan Act to charge 18 people with conspiring to deprive the three men of their civil rights (local Mississippi weren’t interested in bringing criminal charges).
42 US 1983 has become one of the most important tools in civil rights litigation for all sorts of discrimination, and is currently being used by the NAACP to sue Donald Trump and Rudy Guiliani for conspiring with January 6 insurrectionists. But its original purpose was in breaking up the Klan. It seems fitting it’s being used against alt-right groups.
While there seemed to be a momentary backlash against white supremacy in the wake of Charlottesville, the narrative that both sides are contributing to social unrest seems to continue.
Closing arguments began on Thursday after weeks of court testimony that the judge said proved conspiracy (in response to a defense motion to dismiss). Defendants testified as Richard Spencer attempted to read a racist manifesto and Christopher Cantwell spouted conspiracies.
This trial should be seen as an important response to the alt-right movement, but has received a fraction of the coverage and attention of the Rittenhouse trial. While there seemed to be a momentary backlash against white supremacy in the wake of Charlottesville, the narrative that both sides are contributing to social unrest seems to continue.
As I mentioned in my column last week, the mostly peaceful BLM protests of last summer are being cast as another side of the violence of rallies like Charlottesville. Additionally, the conservative misinformation campaigns about critical race theory and the 1619 Project are dominating political coverage and the media seems to mostly accept fear mongering. In reality the current education fights are the same ones we were having about confederate monuments.
One side wants an accurate inclusive historical record while the other wants white supremacist mythmaking held up as history.
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Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.