Sines v. Kessler (324 F. Supp. 3d 765, 2018)

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

In 1871, Congress passed a law "directed at the organized terrorism in the Reconstruction South[.]" Chapman v. Houston Welfare Rights Org. , 441 U.S. 600, 610 n.25, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979) ; see 42 U.S.C. § 1985. Over a hundred and forty years later, on August 11th and 12th, 2017, the Defendants in this lawsuit, including the Ku Klux Klan, various neo-Nazi organizations, and associated white supremacists, held rallies in Charlottesville, Virginia. Violence erupted. Charlottesville residents who suffered injuries at the rallies, the Plaintiffs, allege that this violence was no accident. Instead, they allege the Defendants violated the 1871 Act and related state laws by conspiring to engage in violence against racial minorities and their supporters. The Defendants retort that they were simply engaged in lawful, if unpopular, political protest and so their conduct is protected by the First Amendment. While ultimate resolution of what happened at the rallies awaits another day, the Court holds the Plaintiffs have plausibly alleged the Defendants formed a conspiracy to commit the racial violence that led to the Plaintiffs' varied injuries. Accordingly, the Plaintiffs' claims largely survive, although one Defendant is dismissed and other claims are pared down.

I. LEGAL STANDARD

This opinion addresses one precise question: the legal sufficiency of the Plaintiffs' allegations that the Defendants conspired to engage in racial violence. This question comes before the Court because some of the Defendants have moved the Court to dismiss the complaint. A motion to dismiss a complaint tests the legal sufficiency of the allegations to determine whether the Plaintiffs have properly stated a claim; "it does not, however, resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." King v. Rubenstein , 825 F.3d 206, 214 (4th Cir. 2016). And so the Court does not today choose between the parties' competing narratives of what "actually happened" at the August rallies.

Plaintiffs' complaint is required to "to provide the 'grounds' of [their] entitle[ment] to relief," but this "requires more than labels and conclusions[.]" Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). A court need not "accept the legal conclusions drawn from the facts" by Plaintiffs or "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Simmons v. United Mortg. & Loan Inv., LLC , 634 F.3d 754, 768 (4th Cir. 2011) (quotation marks omitted). But the Court takes all factual allegations in the complaint as true and draws all reasonable inferences in the Plaintiffs' favor. Rubenstein , 825 F.3d at 212. In sum, a complaint will survive a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955.

II. SUMMARY OF ALLEGATIONS

Before addressing the complaint, three brief points are necessary. First, Plaintiffs' complaint is 112-pages long, pushing the limits of Rule 8(a)'s requirement of a "short, plain statement." Fed. R. Civ. P. 8(a). While the Court will not ask the Plaintiffs to trim their complaint, the following summary will necessarily leave out some details. To the extent those details are material to the Court's analysis, they are discussed later in the opinion. Second, the complaint frequently uses vague nouns, lumping all Defendants and all co-conspirators together. Because this style of pleading raises problems addressed below, the following summary focuses on allegations that are tied to specific Defendants. Third, it is important to remember that the following summary is a recounting of allegations. While the Court does not repeatedly state "Plaintiffs allege that Defendant X did Y ," this summary should not be taken as the Court's endorsement of one version of the facts.

A. The Plaintiffs

The Plaintiffs are ten Charlottesville residents who each allegedly suffered some injury related to the rallies. Their relationships to the Defendants fall into three general groups. First, there are those that attended a counter-protest on the night of Friday, August 11th, 2017. As discussed more fully below, various Defendants led a torchlight march at the University of Virginia. At the end of that march, some Plaintiffs were assaulted. One of these Plaintiffs was Tyler Magill, who was surrounded and assaulted by various marchers around a Thomas Jefferson statue. (Dkt. 175 at ¶ 166). The marchers hurled torches at Magill and others, sprayed them with pepper spray, and threw other liquids on them. (Id. at ¶¶ 169, 173, 174). He later suffered a "trauma-induced stroke" and related injuries. (Id. at ¶ 11). Plaintiff John Doe, an African-American UVA student, attended the march where he also was harassed and assaulted. (Id. at ¶ 13). He suffered various emotional injuries. (Id. at ¶ 293). A third Plaintiff, a UVA student named Natalie Romero, was also surrounded and assaulted at the statue. (Id. at ¶ 18).

Second, another group of Plaintiffs was injured when one of the Defendants, James Fields, drove his car into a crowd of counter-protestors after the "Unite the Right" rally on Saturday, August 12th. Plaintiff Romero also falls into this second group, as she was hit by Fields's car and sustained subsequent injuries. (Id. ). Plaintiff Marcus Martin, an African-American counter-protestor, was hit by Fields's car and sustained a broken leg and ankle. (Id. at ¶ 17). He pushed his fiancé, Plaintiff Marissa Blair, out of the way of the oncoming car, but she too suffered various physical injuries. (Id. at ¶ 16). Plaintiff Chelsea Alvarado was also hit by Defendant Fields's car, and she suffered physical and emotional injuries. (Id. at ¶ 19). Plaintiff Elizabeth Sines, a second year law student, witnessed the events and suffered severe emotional distress and shock. (Id. at ¶ 15). Plaintiff April Muñiz was close to being hit by the car, and she has been diagnosed with acute stress disorder and trauma since the event. (Id. at ¶ 12).

Third, there are two other Plaintiffs who are more difficult to classify. Plaintiff Seth Wispelwey is a minister who led an ecumenical organization called "Congregate" in non-violent protest. (Id. at ¶¶ 11, 134). He was part of a church service across from the torchlight march on the 11th, was confronted by one of the Defendants after the torchlight rally, and was assaulted while counter-protesting on Saturday. (Id. at ¶¶ 178, 182, 208). The last Plaintiff is Hannah Pearce. She is a member of Congregation Beth Israel, a synagogue close to the park where the Saturday rally took place. (Id. at ¶ 14). She peacefully protested throughout the weekend and was subjected to anti-Semitic harassment. (Id. at ¶¶ 219-21).

B. The Defendants

Two of the primary organizers of the Friday and Saturday events were Defendants Richard Spencer and Jason Kessler. Defendant Richard Spencer planned the Friday night march and encouraged his many followers to attend the Saturday rally. (Dkt. 175 at ¶ 21). Defendant Jason Kessler is a Charlottesville resident who applied for, and eventually received, a permit to hold the Saturday rally. (Id. at ¶¶ 20, 55).

Two other promoters were Defendants Christopher Cantwell and Michael Peinovich. Defendant Cantwell attended the events and faced criminal charges for using pepper spray at the Friday night march. (Id. at ¶ 22). Defendant Michael Peinovich hosts a podcast called The Daily Shoah and was featured on a promotional poster for the event. (Id. at ¶ 42).

Many of the individual Defendants who helped plan the events are part of organizations that are themselves Defendants. Defendants Andrew Anglin and Robert "Azzmador" Ray run a website called The Daily Stormer. (Id. at ¶¶ 25, 27). They used this platform and associated "book clubs" to promote the events, which Ray attended. (Id. ). The website is owned by an Ohio limited liability corporation, Defendant Moonbase Holdings, LLC. (Id. at ¶ 26).

Defendant Vanguard America is a white nationalist group with twelve chapters across the country. (Id. at ¶ 24). Many of its members attended the events. (Id. at ¶¶ 153, 197). Plaintiffs alleged one of its members, Defendant James Fields, intentionally drove his car into a crowd of counter-protesters, killing one individual and injuring many others. (Id. at ¶ 23).

Another organizer was Defendant Eli Mosley. (Dkt. 175 at ¶ 29). He is associated with the white supremacist organization Defendant Identity Evropa. (Id. at ¶¶ 29, 30). The founder of that organization is Defendant Damigo, who helped facilitate transportation for the events. (Id. at ¶ 28). Defendant Identity Evropa popularized the "You will not replace us!" chant that became the protesters' rally cry. (Id. at ¶ 30). Both Damigo and Mosley attended the events.

Defendant Traditionalist Worker Party is a white nationalist organization, with many members who attended the rallies. (Id. at ¶ 33). It is led by Defendant Matthew Heimbach and Defendant Matthew Parrott. (Id. at ¶¶ 31, 32). Parrott wrote an account of his experiences at the Saturday rally, and he described how multiple Defendants used organized formations of "shield walls" in "the fight." (Id. ).

Defendant League of the South and two of its leaders, Defendants Michael Hill and Michael Tubbs, were also involved in the fighting at the Saturday rally. (Id. at ¶¶ 34-36). Defendant Tubbs, in particular, led an organized charge of League of the South members against counter-protestors. (Id. ).

Defendant Augustus Sol Invictus is a member of Defendant Fraternal Order of Alt-Knights, which is the "military wing" of the white nationalist group "Proud Boys." (Id. at ¶¶ 40- 41). He attended both events. (Id. ).

Two different Ku Klux Klan organizations also participated in some capacity. Defendant Loyal White Knights of the Ku Klux Klan organized a previous Charlottesville rally, and then made various statements celebrating Defendant Fields's decision to drive his car into counter-protesters. (Id. at ¶ 36). Defendant East Coast Knights of the Ku Klux Klan also attended the previous rally and then participated in the August 12 rally. (Id. at ¶ 44).

Defendant National Socialist Movement is a white supremacist organization that has a "paramilitary" structure. (Id. at ¶ 38). Defendant Jeff Schoep, its leader, attended the rallies and afterwards tweeted that is was an "honor" to stand with the other "warriors." (Id. at ¶ 37).

Finally, Defendants Schoep, Heimbach, and Hill lead Defendant Nationalist Front, an umbrella organization that includes many of the aforementioned organizations. (Id. at ¶ 39).

C. Months preceding August 11 and 12th

Charlottesville drew Defendants' attention because of its decision to change the name of Lee Park, a small park in Downtown Charlottesville that contains a statue of General Robert E. Lee, to Emancipation Park in February 2017. (Dkt. 175 at ¶¶ 47-48). In May 2017, various white supremacist groups, including some Defendants, led a torchlight march around the Lee statue. (Id. at ¶ 50). "Capitalizing on the perceived success of the May event," Defendant Kessler submitted an application for a follow-up rally on August 12th. (Id. at ¶ 55). In the intervening months, various Defendants came to Charlottesville for marches and demonstrations. (Id. at ¶¶ 56-57). Plaintiff Romero protested one of these events, a Ku Klux Klan march, and received harassing phone calls afterwards from a member of the Klan. (Id. at ¶ 58).

D. Planning for the August 11th and 12th rallies

Key Defendants met together in person for planning purposes at least a few times. Defendant Spencer and Evan McLaren, a member of Defendant Identity Evropa, met at the Trump Hotel in D.C. to organize the rally on an unspecified date. (Dkt. 175 at ¶ 64). Closer to the rallies, Defendants Cantwell and Kessler then met on August 9th in Charlottesville to plan. (Id. at ¶ 65). Defendants Ray, Cantwell, Mosley, and purported co-conspirator David Duke had a similar meeting on August 11. (Id. at ¶ 66).

Much more significantly, the majority of the planning appears to have occurred online. Defendants Kessler and Mosley used an online program called "Discord" for planning. (Id. at ¶¶ 71-73). This "invite only" platform allowed Defendants and their chosen invitees to engage in private conversations during the lead up to the events. (Id. at ¶ 72). While Defendants Kessler and Mosley moderated and managed Discord, many other Defendants participated on the platform, including Defendants Heimbach, Parrott, Cantwell, Ray, Vanguard America, Identity Evropa, Traditionalist Worker Party, League of the South, and Moonbase Holdings. (Id. at ¶¶ 74, 77). Organizational Defendants were able to maintain private sub-forums for their own members. (Id. at ¶ 77).

Conversation on Discord included mundane planning details, racist "jokes," and concrete threats of violence. Defendant Mosley posted "General Orders" for "Operation Unite the Right Charlottesville 2.0." (Id. at ¶ 75). Organizers also posted information about shuttle service information, lodging, and carpools. (Id. at ¶ 76). Other corners of Discord were significantly darker. One user posted a fake advertisement for a pepper-spray-look-alike called "Nig-Away," described as a "a no-fuss, no muss 'nigger killer,' " promised to "kill[ ] on contact" in order to "rid the area of niggers." (Id. at ¶ 111). Another frequent Discord user asked whether it was "legal to run over protestors blocking roadways?" (Id. at ¶ 239). He clarified he was not joking, "I'm NOT just shitposting. I would like clarification. I know it's legal in [North Carolina] and a few other states. I'm legitimately curious for the answer." (Id. ). Other Discord users made similar comments about running over counter-protestors. (Id. at ¶ 236-41). Elsewhere on Discord, users made it clear they planned to fight at the events, saying things like "I'm ready to crack skulls." (Id. at ¶ 97). Defendant Kessler told users: "I recommend you bring picket sign post, shields and other self-defense implements which can be turned from a free speech tool to a self-defense weapon should things turn ugly." (Id. at ¶ 112). Defendant Vanguard America instructed its members "to arrive at the rally in matching khaki pants and white polos," with one member noting that this was "a good fighting uniform." (Id. at ¶ 115). Defendant Hill wrote, in a Defendant League of the South Facebook group, that he wanted "no fewer than 150 League warriors, dressed and ready for action, in Charlottesville, Virginia, on 12 August." (Id. at ¶ 36). Similar comments from other Defendants abound.

E. Counter-protestors prepare

While this planning was ongoing, separate counter-protesters received permits to hold events in other parks during the Defendants' rally. (Dkt. 175 at ¶ 132). Plaintiff Wispelwey started an organization, "Congregate," to join with interfaith clergy in protesting against racial inequality and the rally. (Id. at ¶ 134). Defendant Kessler advised other attendees about Congregate's work, allegedly in an attempt to threaten the organization. (Id. at ¶ 135). The names of other counter-protestors were shared over Discord. (Id. at ¶ 137).

Other individuals opposed to the "Unite the Right" rally also prepared. Plaintiff Pearce's temple, Congregation Beth Israel, moved its Torah scrolls off site in advance of the rally and changed the time of its normal Shabbat services. (Id. at ¶¶ 138-39). Stores around town put signs up supporting diversity and equality. (Id. at ¶ 140). Defendants Kessler, Mosley, Spencer, and Peinovich shared the names and addresses of these businesses, allegedly in an attempt to have attendees intimidate them. (Id. at ¶ 141). Some of these businesses received various threats. (Id. at ¶ 142).

F. The march on August 11th

Defendants Mosley, Spencer, Kessler, Ray, Anglin, Cantwell, and Invictus organized a secret torchlight march at UVA. (Dkt. 175 at ¶ 143-49). These torches were supposed to invoke the Ku Klux Klan's and Nazi's similar use of torches. (Id. at ¶ 150). The marchers marched two-by-two up the Lawn, around the Rotunda, and towards a Thomas Jefferson statue on the far side of the Rotunda. (Id. at ¶¶ 159, 164). As they marched, they chanted various racist slogans and performed Nazi salutes. (Id. at ¶¶ 161-62).

Although the march was supposed to be secret, approximately thirty counter-protesters, including Plaintiffs Doe, Magill, and Romero, reached the Jefferson statue before the marchers. (Id. at ¶¶ 164, 169). The counter-protesters linked arms and surrounded the statue, facing away from it. (Id. at ¶ 164). As the marchers rounded the Rotunda, they charged towards the statue and surrounded the counter-protestors. (Id. at ¶¶ 164, 166). Fighting broke out, and the marchers kicked and punched the counter-protesters. (Id. at ¶ 168). People in the crowd threw an unidentified fluid at the counter-protesters, including on Plaintiffs Doe, Magill, and Romero. (Id. at ¶ 169). These Plaintiffs were afraid it was fuel and that they would be burned. (Id. ). Defendant Ray shouted, "The heat here is nothing compared to what you're going to get in the ovens!" (Id. ). A photo shows Defendant Cantwell spraying a counter-protestor with pepper spray. Id. at 56. (Id. at ¶ 172). Plaintiffs Doe and Romero felt trapped and did not believe they could escape safely. (Id. at ¶¶ 173-74).

During this time, Plaintiff Wispelwey and around 1,000 others were inside St. Paul's Church, which is located across the street from the Rotunda. (Id. at ¶ 154). The faith community at St. Paul's, including Plaintiff Wispelwey, witnessed the marchers. (Id. at ¶ 178). The church leaders asked everyone to remain at the church out of a fear of violence. (Id. at ¶ 180). Plaintiff Wispelwey eventually drove some attendees to their homes and hotels. (Id. at ¶ 181). At one hotel, Defendant Invictus confronted Wispelwey and aggressively asked him what he was doing at the hotel and what church he belonged to. (Id. at ¶ 182).

The night ended with Defendants Kessler and Spencer, and others, celebrating the evening's events and encouraging their followers to come to the following day's rally. (Id. at ¶ 184).

G. The rally on August 12th

Almost all of the Defendants attended Saturday's "Unite the Right" rally, including Defendants Kessler, Cantwell, Mosley, Heimbach, Hill, Invictus, Ray, Spencer, Damigo, Peinovich, Fields, Parrott, Tubbs, Nationalist Front, League of the South, National Socialist Movement, Traditionalist Worker Party, Vanguard America, East Coast Knights, Loyal White Knights, Fraternal Order of Alt-Knights, and members of The Daily Stormer's "book clubs." (Dkt. 175 at ¶ 187).

Defendants arrived in passenger vans, gathered at pre-arranged meet up spots, and then marched towards the park. (Id. at ¶¶ 196, 207). They entered Emancipation Park "in military formations, armed like paramilitary forces." (Id. at ¶ 195). Organizations marched with matching uniforms, coordinated shields, and regimental flags. (Id. at ¶¶ 197-98). Defendant Fields, who would later drive his car into the crowd, wore Defendant Vanguard America's uniform and marched with other Vanguard America members. (Id. at ¶ 197).

As the military formations marched into the park, they assaulted and knocked over various counter-protestors, including Plaintiffs Wispelwey and Romero. (Id. at ¶ 208). Other counter-protesters were blockaded around the park, and rally attendees used "shields, flags, or fists" to break through these counter-protesters and enter the park. (Id. at ¶ 209). Once in the park, the violence escalated. According to an account of the day written by Defendant Parrott, members of Defendants Traditionalist Worker Party, League of the South, National Socialist Movement, and other Nationalist Front groups, jointly created "two shield walls" for "the fight." (Id. at ¶ 212). Defendant Identity Evropa "were occupied on other fronts," but "sent a detachment of fighters to assist us and to relay intelligence to Jason Kessler and other organizers." (Id. ). Defendant Tubbs ordered Defendant League of the South members to "charge," and "[a]fter receiving this command, the group streamed past him to attack counter-protesters." (Id. at ¶ 35).

Some marchers also yelled anti-Semitic and Nazi slogans while passing Plaintiff Pearce's synagogue. (Id. at ¶ 202). Defendant Ray carried a banner that stated "Gas the kikes, race war now!" (Id. ). An anonymous individual later threatened to "torch those Jewish monsters" in a comment on a YouTube video, leading Charlottesville's mayor to ask for police protection for the synagogue. (Id. at ¶ 203). Plaintiff Pearce and her son counter-protested the rally outside the park. (Id. at ¶ 220). She wore a Star of David and carried a rainbow flag. (Id. at ¶ 219). She was harassed by a rally attendee, who shouted, "Oh good, they are marking themselves for us." (Id. at ¶ 220). Another rally attendee threw an open bottle with a "foul liquid" that hit Plaintiff Pearce. (Id. at ¶ 221).

Then, at 11:22 a.m., Charlottesville declared the gathering an unlawful assembly. (Id. at ¶ 223). Defendants Kessler, Cantwell, Ray, Schoep, and Vanguard America among others, moved to McIntire Park. (Id. at ¶ 226-28). Defendant Parrott did not leave, and was arrested for failure to disperse. (Id. at ¶ 228). Violence continued in McIntire Park and on Charlottesville's downtown mall. (Id. at ¶¶ 229, 234).

H. The car attack on August 12th

At 1:40 p.m., Plaintiffs allege Defendant Fields deliberately drove his car into a crowd of peaceful protesters that were congregated at the intersection of Fourth Street and the Downtown mall. (Id. at ¶ 242). Plaintiffs Martin, Blair, Sines, Muñiz, Alvarado, and Romero were all on Fourth Street when Fields drove his car into the crowd. (Id. at ¶ 243). Multiple of these Plaintiffs were struck by Defendant Fields' car and incurred serious injuries. (Id. at ¶¶ 244-56). A friend of some of the Plaintiffs, Heather Heyer, was killed. (Id. at ¶ 248).

I. Happenings after the event

After the event, Defendants Anglin, Vanguard America, Kessler, Heimbach, East Coast Knights, and Loyal White Knights posted messages approving of the Defendant Fields's car attack. (Dkt. 175 at ¶¶ 264, 266-69, 272). Defendant Schoep said it was an honor "to stand" with the other co-Defendants at the rally, and referred to them as "true warriors." (Id. at ¶ 271). Defendant Spencer referred to the rally a "huge moral victory." (Id. at ¶ 273). Defendant Cantwell was glad nobody on the Defendants' "side" died. (Id. ).

Many Defendants have stated they would like to return to Charlottesville for a similar event. (Id. at ¶ 296). Defendant Spencer and others engaged in another torchlight march in Charlottesville on October 7, 2017. (Id. at ¶ 306). Defendant Kessler filed an application for another rally on August 11 and 12, 2018. (Id. at ¶ 307).

III. COUNT ONE : 42 U.S.C. § 1985(3)

In Count One, Plaintiffs allege all Defendants violated 42 U.S.C. § 1985(3), which states:

If two or more persons ... conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... [and] if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

The specific Defendants identified in footnote one moved to dismiss. The majority of the Section 1985(3) claims survive, although Plaintiff Pearce's claims against these Defendants will be dismissed, and all claims against Defendant Peinovich will be dismissed.

Plaintiffs must plausibly allege the following elements to state a Section 1985(3) claim:

(1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.

A Soc'y Without A Name v. Virginia , 655 F.3d 342, 346 (4th Cir. 2011) (citing Simmons v. Poe , 47 F.3d 1370, 1376 (4th Cir. 1995) ). Importantly, and unlike Section 1983, Section 1985(3) reaches private conspiracies (i.e. , there is no state action requirement). See Griffin v. Breckenridge , 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

In order to frame a Defendant-by-Defendant analysis of the pleadings, the Court works through these elements slightly out of order. The Court first addresses the requisite racial animus and purpose of the conspiracy (the second and third elements). After laying this framework, the Court evaluates the complaint to see if it plausibly alleges that each Defendant joined such a conspiracy (the first element). The Court then asks whether that conspiracy caused Plaintiffs' alleged injuries (the fourth and fifth elements). Finally, while Plaintiffs' overarching First Amendment and other defenses are addressed separately at the end of this opinion, the Court does flag specific allegations that are not protected by that Amendment throughout the following discussion.

A. Racial animus

Plaintiffs must plead that the Defendants were "motivated by a specific class-based, invidiously discriminatory animus." A Soc'y Without A Name , 655 F.3d at 346 ; Francis v. Giacomelli , 588 F.3d 186, 196-97 (4th Cir. 2009) (same). No Defendant seriously disputes that Plaintiffs have adequately alleged Defendants possessed racial animus against black and Jewish individuals; the complaint is replete with racist statements made and affirmed by Defendants. However, some Defendants do argue that they only possessed racial animus against non-white individuals, and so they cannot be held liable by white Plaintiffs. But Section 1985(3) was enacted "to combat the prevalent animus against Negroes and their supporters. " United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott , 463 U.S. 825, 836, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) (emphasis added). And the Supreme Court has said the statute reaches "class-based animus" directed "against Negroes and those who championed their cause [.]" Id. (emphasis added). Here, Plaintiffs have plausibly alleged that they were attacked because of their support of non-white racial minorities, and so this element is satisfied as to all Defendants.

B. Intent to deprive Plaintiffs of equal protection of rights secured by law

In addition to racial animus, the purpose of the alleged conspiracy must be to "deprive the plaintiff of the equal enjoyment of rights secured by the law to all." But importantly, " Section 1985(3) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates." Great Am. Fed. Sav. & Loan Ass'n v. Novotny , 442 U.S. 366, 372, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). And so, "[t]he rights, privileges, and immunities that § 1985(3) vindicates must be found elsewhere." Scott , 463 U.S. at 833, 103 S.Ct. 3352. The Fourth Circuit has further clarified that these underlying rights must be "rights guaranteed by federal law or the Constitution." Doski v. M. Goldseker Co. , 539 F.2d 1326, 1333 (4th Cir. 1976).

Additionally, the federal substantive right "found elsewhere" must be "guaranteed against private impairment." Bray v. Alexandria Women's Health Clinic , 506 U.S. 263, 274, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). For example, a plot by solely private parties to deprive individuals of their First Amendment rights is not actionable because those rights are only protected against public impairment (i.e. , "Congress shall make no law ..."). See Scott , 463 U.S. at 833, 103 S.Ct. 3352 ("[H]ere the right claimed to have been infringed has its source in the First Amendment. Because that Amendment restrains only official conduct, to make out their § 1985(3) case, it was necessary for respondents to prove that the state was somehow involved in or affected by the conspiracy.").

In light of these limitations, the Supreme Court has noted there are "few" rights that can support a Section 1985(3) claim. Bray , 506 U.S. at 278, 113 S.Ct. 753. The only rights to be so recognized by the Supreme Court are "the Thirteenth Amendment right to be free from involuntary servitude, United States v. Kozminski , 487 U.S. 931, 942 [108 S.Ct. 2751, 101 L.Ed.2d 788] (1988), and, in the same Thirteenth Amendment context, the right of interstate travel, see United States v. Guest , 383 U.S. [745,] 759, n. 17 [86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) ]." Id. ; see also Tilton v. Richardson , 6 F.3d 683, 686-87 (10th Cir. 1993) (same). So the big question under this element is which of Plaintiffs' underlying rights satisfy these requirements. Plaintiffs suggest two potentially viable sources.

First, Plaintiffs claim the Thirteenth Amendment provides them with a right to be free from racial violence. In Griffin v. Breckenridge , 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Court held that Section 1985(3) reached a private conspiracy where white Mississippians allegedly stopped African-Americans on a public highway (mistaking them for civil rights workers), pulled them out of their car, and beat them. Id. at 89-92, 91 S.Ct. 1790. The Supreme Court later summarized Griffin as holding that "the conspiracy at issue was actionable because it was aimed at depriving the plaintiffs of the rights protected by the Thirteenth Amendment and the right to travel guaranteed by the Federal Constitution. Section 1985(3) constitutionally can and does protect those rights from interference by purely private conspiracies." Scott , 463 U.S. at 832-33, 103 S.Ct. 3352. But if Section 1985(3) protects Thirteenth Amendment rights that were implicated by the facts of Griffin , those rights must extend beyond the core "right to be free from involuntary servitude." In Griffin , after all, the alleged assaults were certainly motivated by racial animus, but they could not be fairly described as seeking to literally enslave the plaintiffs.

Plaintiffs respond by citing cases (including Griffin ) that discuss Congress's authority to legislate under Section Two of the Thirteenth Amendment, which "extend[s] far beyond [legislation addressing] the actual imposition of slavery or involuntary servitude." Griffin , 403 U.S. at 105, 91 S.Ct. 1790. Because, "[b]y the Thirteenth Amendment, we committed ourselves as a Nation to the proposition that the former slaves and their descendants should be forever free," these cases teach that " 'Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.' " Griffin , 403 U.S. at 105, 91 S.Ct. 1790 (quoting Jones v. Alfred H. Mayer Co. , 392 U.S. 409, 440, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) ); United States v. Cannon , 750 F.3d 492, 501 (5th Cir. 2014) ("[T]he term 'badge of slavery' ... refers to indicators, physical or otherwise, of African-Americans' slave or subordinate status." (internal citations omitted) ). But this language is not entirely helpful here. No one disputes that Congress's power under the Thirteenth Amendment allows it to address "badges and incidents" of slavery; the question here is whether the Thirteenth Amendment provides rights independent of Congressional action that go beyond a more narrow reading of the "right to be free from involuntary servitude."

The Court concludes the Thirteenth Amendment provides Plaintiffs an underlying right to be free from racial violence analogous to that present in Griffin. In doing so, the Court relies most heavily on Scott 's statement that the Griffin conspiracy was "aimed at depriving the plaintiffs of the rights protected by the Thirteenth Amendment ," rights which " Section 1985(3) constitutionally can and does protect ...." Scott , 463 U.S. at 832-33, 103 S.Ct. 3352 (emphasis added). Likewise, the Fourth Circuit has characterized Griffin as holding that Section 1985(3) protects underlying rights granted by the Thirteenth Amendment. See Harrison v. KVAT Food Mgmt., Inc. , 766 F.2d 155, 158 (4th Cir. 1985) ("The Court held that the statute does create a cause of action for certain kinds of private action interfering with the federally protected rights to travel and Thirteenth Amendment rights ...." (emphasis added) ); Bellamy v. Mason's Stores, Inc. (Richmond) , 508 F.2d 504, 506 (4th Cir. 1974) ("The language of [ Section 1985(3) ] tracks the language of the fourteenth amendment, and we now know that included within it is a wholly private conspiracy to deny Negro citizens the right of travel and rights based upon the thirteenth amendment. " (emphasis added) ). District courts have also assumed Section 1985(3) reaches racial violence analogous to that alleged here, although most have not engaged in careful analysis of the Thirteenth Amendment's scope. See, e.g., Frazier v. Cooke , No. 4:17-CV-54, 2017 WL 5560864, at *2-*3 (E.D. Va. Nov. 17, 2017). The repeated Supreme Court and Fourth Circuit interpretations of Griffin provide very persuasive guidance, even if found in dicta , that the Thirteenth Amendment does provide an underlying right to be free from racial violence that can sustain a Section 1985(3) claim. See Doe v. Chao , 435 F.3d 492, 508 (4th Cir. 2006) ("We said long ago that 'certainly dicta of the United States Supreme Court should be very persuasive.' " (citation omitted) ). Accordingly, Plaintiffs' claims can proceed on this theory.

Second, Plaintiffs alternatively suggest Section 1982 as a fountainhead of enforceable rights. That statute provides: "All citizens of the United States shall have the same right ... as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." Plaintiffs claim that rally attendees interfered with the property rights of Congregation Beth Israel by marching past it and making anti-Semitic remarks outside of it. Plaintiff Pearce, a member of that synagogue, seeks to assert its alleged rights. Assuming Pearce can assert the synagogue's rights, Plaintiffs have still failed to adequately allege Defendants conspired to violate rights guaranteed to them by Section 1982.

The Supreme Court's seminal case on Section 1982 is Jones v. Alfred H. Mayer Co. , 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). There the Court held that Congress had authority to prevent private defendants from refusing to sell a home to black plaintiffs because of their race. Id. at 438-44, 88 S.Ct. 2186. Those facts represent a paradigmatic Section 1982 violation. Some courts have extended the reach of that statute to something closer to Plaintiff's theory. For example, in United States v. Greer , 939 F.2d 1076 (5th Cir. 1991), opinion reinstated in relevant part on reh'g , 968 F.2d 433 (5th Cir. 1992), the Court affirmed a conviction for conspiracy to violate Section 1982 when a neo-Nazi group damaged the temple's gas lines, painted swastikas and anti-Semitic slogans on the temple, and shot out the windows with a pistol. 939 F.2d at 1083. The court agreed with the Government "that members and non-members of the temple and community center, such as guests, could claim that the acts of defendants violated their right to use this property." Id. at 1091. Similarly in United States v. Brown , 49 F.3d 1162 (6th Cir. 1995), the court upheld another conviction for conspiracy to violate Section 1982. In that case, a skinhead and member of the Klu Klux Klan shot into a synagogue late at night. Even though no one was present, the court found this conduct violated Section 1982. Id. at 1164.

Here, alternatively, there are no allegations that anyone touched or harmed the synagogue. The worst of the allegations concern unidentified individuals who marched past the synagogue and shouted anti-Semitic slogans. This alleged conduct is very different from the shots fired into synagogues in the above cases or the repeated harassment found in other cases. Furthermore, the only allegation concerning an actual Defendant states Defendant Ray carried a banner with anti-Semitic language. (Dkt. 175 at ¶ 202). It does not allege he carried this banner past the synagogue or otherwise interacted with it. (Id. ). Likewise, the allegation that Defendants can be held liable for a statement made by an unknown individual on a YouTube video is frivolous. (Id. at ¶ 203). These allegations do not adequately plead that one of the Defendants interfered with the property rights of the synagogue.

While Plaintiffs have identified an underlying federal right guaranteed against private impairment in the Thirteenth Amendment, they must plausibly allege that Defendants entered a conspiracy to deprive them of that right. Determining whether they have done so requires the Court to return to the first element, conspiracy.

C. Conspiracy

In order to adequately plead a Section 1985(3) conspiracy, "the plaintiff must show an agreement or a meeting of the minds by [the] defendants to violate the [plaintiff's] constitutional rights." A Soc'y Without A Name , 655 F.3d at 346. "[A]lthough an express agreement is not necessary, the participants in the conspiracy must share the general conspiratorial objective .... [I]t simply must be shown that there was a single plan, the essential nature and general scope of which was known to each person who is to be held responsible for its consequences." Simmons , 47 F.3d at 1378.

One effect of these pleadings requirements, and the overlapping First Amendment interests discussed below, is that Plaintiffs cannot plausibly plead that all rally attendees who disagreed with them were part of one overarching conspiracy. See A Soc'y Without A Name , 655 F.3d at 347 (holding Section 1985(3) allegations were insufficient when the plaintiff "fail[ed] to allege with any specificity the persons who agreed to the alleged conspiracy, the specific communications amongst the conspirators, or the manner in which any such communications were made"). Plaintiffs at various times call anonymous individuals who shouted anti-Semitic slogans "co-conspirators." (Dkt. 175 at ¶ 202). Stretching credulity even further, Plaintiffs allege various statements posted on Facebook and YouTube were made by "co-conspirators." (See id. at ¶ 203 (attributing screen shot of youtube.com with comment "it's time to torch those jewish monsters" to a co-conspirator); id. at ¶ 271 ("A co-conspirator posted on Facebook ....") ). Plaintiffs seemingly label everyone at the rally (and for that matter on the internet) who disagreed with them as co-conspirators. The Court does not credit such conclusory labeling. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("A pleading that offers 'labels and conclusions' ... will not do.").

Instead, Plaintiffs must allege each Defendant entered into an agreement with a specific co-conspirator to engage in racially motivated violence at the August 11th and 12th events. The plausibility of these factual allegations increase as Plaintiffs add specificity about the method of agreement, the time or place of the agreement, and the scope of the agreement. The Court works through Plaintiffs' allegations on a Defendant-by-Defendant basis below. While the Court does not credit the conclusory labels discussed above, the Court concludes Plaintiffs have adequately pled specific factual allegations that each moving Defendant, except for Defendant Peinovich, was part of a conspiracy to engage in racially motivated violence at the "Unite the Right" events.

i. Jason Kessler

Jason Kessler appears prominently throughout the complaint. (See dkt. 175 at ¶¶ 20, 49- 52, 55, 56, 59, 61, 63, 65, 73, 78, 97, 112, 122, 130, 135, 137, 141, 143, 147, 157, 164, 179, 184, 187-89, 190, 212, 226, 241, 260, 267, 302, 307, 316, 321, 322, 324, 326-29). Kessler was perhaps the overarching organizer for the event. He applied for the permit for the August 12th rally and then worked with Defendant Spencer to invite a plethora of white supremacist groups. (Id. at ¶¶ 49, 55, 61, 326). He hoped this rally would help to move white Americans across the South "beyond 'heritage not hate.' " (Id. at ¶ 122). He allegedly "moderated, reviewed, directed, and managed" Discord. (Id. at ¶¶ 73, 322, 324). Despite this moderation, he allowed statements like "I'm ready to crack skulls" and "Studies show 999/1000 niggers and feminists fuck right off when faced with pepper spray" to proliferate across the platform. (Id. at ¶ 97). Kessler himself told others on Discord to "bring picket sign post, shields and other self-defense implements which can be turned from a free speech tool to a self-defense weapon should things turn ugly." (Id. at ¶ 112). And, in the days leading up to the event, he met in person with Defendant Cantwell to plan "unlawful acts of violence [and] intimidation." (Id. at ¶¶ 65, 316).

At the Friday night torchlight march, Defendant Kessler once again functioned as an organizer, telling the marchers to get in formation. (Id. at ¶¶ 143, 147, 157, 328). Along with Defendants Cantwell, Mosley, Spencer, Ray, and Invictus, Defendant Kessler "directed and incited physical assaults and violence, the use of open flames, and the intimidation of minority residents and those who advocate for equal rights for minority citizens" at the rally. (Id. at ¶ 329). The complaint identifies Defendant Kessler as leading the charge towards Plaintiffs Magill, Doe, and Romero at the Thomas Jefferson statue. (Id. at ¶ 164). This charge culminated with the circling of the counter-protesters (id. at ¶ 166), Defendant Cantwell and others spraying pepper spray at the counter-protesters (id. at ¶ 172), and the marchers throwing their burning torches at the counter-protesters. (Id. at ¶ 169). Throughout this time, the marchers were performing Nazi salutes, chanting "Blood and Soil," "Jews will not replace us," and making monkey noises at black counter-protesters. (Id. at ¶ 162, 165). Plaintiffs have plausibly alleged Kessler came to an agreement with these co-Defendants to engage in racially motivated violence against the counter-protesters at the torchlight march.

Then, the next day at the rally, various co-Defendant organizations fought against counter-protesters. (Id. at ¶ 212). While they did this, Defendant Identity Evropa "sent a detachment of fighters to assist [Defendant League of the South] and to relay intelligence to Jason Kessler and other organizers." (Id. ). This paragraph plausibly alleges Defendant Kessler was overseeing the racial violence at the rally. Finally, after hearing about Defendant Fields's later attack, Kessler called Heather Heyer, the victim who died, a "communist" and said "Communists have killed 94 million. Looks like it was payback time." (Id. at ¶ 267). In light of his other conduct, this plausibly alleges ratification of Defendant Fields's conduct.

The complaint plausibly alleges that Defendant Kessler entered into agreements with these other Defendants for the purpose of assaulting and intimidating individuals who were counter-protesting Defendants' message of white supremacy. As discussed below, many of these actions are completely divorced from any First Amendment protection. (See, e.g., id. at ¶ 164 (the charge resulting in violence around the Jefferson statue); id. at ¶ 212 (overseeing the violence at the Saturday rally) ).

ii. Richard Spencer

Defendant Spencer was also prominently involved in the organization of the events. (See dkt. 175 at ¶¶ 21, 28, 29, 40, 42, 49, 52, 63, 64, 70, 85, 87, 92, 108, 120, 141, 143, 153, 164, 166, 175, 184, 187, 229, 230, 260, 273, 297, 300, 305, 306, 311, 315, 327-29). Alongside Defendant Kessler, "Spencer invited white supremacist groups to visit and hold events around the statue with the intent of intimidating nonwhite and Jewish individuals and their allies." (Id. at ¶ 49). Spencer coordinated with Defendants Damigo and Identity Evropa, who "took the lead in organizing white supremacist participation among people from outside Charlottesville ...." (Id. at ¶¶ 28, 70). In the lead up to the rally, Spencer met Evan McLaren, a purported Defendant Identity Evropa member, in person in Washington, D.C. for further organization and direction of the rally. ( Id. at ¶ 64). During this time of planning, Spencer made statements that plausibly demonstrate an agreement to engage in violence. An article posted on his website told his followers that "it's time to dominate the streets." (Id. at ¶ 87). A Discord user relayed Spencer's desire that rally attendees "[b]ring as much gear and weaponry as you can within the confines of the law." (Id. at ¶ 108).

Spencer was also a planner of Friday's torchlight march. (Id. at ¶¶ 21, 143, 153, 328). Along with Defendants Cantwell, Mosley, Kessler, Ray, and Invictus, Defendant Spencer "directed and incited physical assaults and violence, the use of open flames, and the intimidation of minority residents and those who advocate for equal rights for minority citizens" at the rally. (Id. at ¶ 329). As with Defendant Kessler, Spencer is specifically alleged to have led the charge towards Plaintiffs Magill, Doe, and Romero at the Thomas Jefferson statue. (Id. at ¶ 164). Marchers climbed to the top of the statue, waved their torches, and yelled "Hail Spencer! Hail victory!" (Id. at ¶ 175). Afterwards, Defendant Spencer confirmed that Defendants had surrounded the counter-protestors at the statue. (Id. at ¶ 166). After the event, he addressed the crowd and thanked them for "risking their lives" for their future. (Id. at ¶ 175).

Defendant Spencer was also involved with and attended the Saturday rally. (Id. at ¶ 187). He continued to actively promote the rally through social media. (Id. at ¶¶ 21, 184). And then, in the aftermath of the rally, his website posted a statement that announced "The Alt-Right is finished debating, negotiating, surrendering. We're ready to close ranks and fight for what is ours.... [W]e stand poised to conquer the continent." (Id. at ¶ 305).

Allegations of this degree of planning, followed by these coordinated actions (specifically at the Friday night march), plausibly allege that Defendant Spencer joined a conspiracy to engage in the racially motivated violence that occurred on August 11th and 12th. As with Spencer, much of this conduct was not protected by the First Amendment. (See, e.g., id. at ¶ 164 (the charge resulting in violence around the Jefferson statue) ). Other statements might be protected speech taken by themselves, but in light of Spencer's other conduct they can plausibly "be taken as evidence that [he] gave other specific instructions to carry out violent acts or threats." N.A.A.C.P. v. Claiborne Hardware Co. , 458 U.S. 886, 927, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) ; see, e.g. , dkt. 175 at ¶ 175 (thanking marchers who charged the statue "for risking their lives"); id. at ¶ 305 ("The Alt-Right is finished debating, negotiating, surrendering. We're ready to close ranks and fight for what is ours.").

iii. Christopher Cantwell

While Defendant Cantwell may have been lower in the pecking order than either Kessler or Spencer, he is more closely tied to acts of overt violence in furtherance of the conspiracy than either of them. (See dkt. 175 at ¶¶ 22, 63, 65, 66, 74, 107, 127, 143, 151, 157, 159, 160, 172, 187, 226, 227, 273, 277, 303, 304, 309, 310, 316, 317, 322, 323, 326-330). He was an active participant on Discord in the months leading up to the event. (Id. at ¶¶ 74, 322). He used his various platforms to "advise[ ] rallygoers on bringing weapons." (Id. at ¶ 323). In the days before the rally, he met with Defendants Kessler, Ray, Mosley, and purported co-conspirator David Duke "to plan and direct the unlawful acts of violence ...." (Id. at ¶¶ 65, 66, 316, 317). On the morning of the 11th, he told a reporter that he was "trying to make [himself] more capable of violence." (Id. at ¶ 151).

Then, at the Friday night torchlight march, Cantwell joined Defendants Spencer, Mosley, Kessler, Ray, and Invictus, Defendant Spencer in "direct[ing] and incit[ing] physical assaults and violence, the use of open flames, and the intimidation of minority residents and those who advocate for equal rights for minority citizens." (Id. at ¶ 329). "Defendants Cantwell, Kessler, Ray, and other co-conspirators were issuing orders to the other white supremacists and neo-Nazis, telling them to get in specific formations and assigning people either to march with a torch or on the side as 'security.' " (Id. at ¶ 157). "Organizers, including Defendant Cantwell, wore earpieces, carried radios, and shouted specific orders at the marchers. They shouted to keep pace, avoid gaps, stay in line 'two-by-two,' and march alongside a 'security guard.' " (Id. at ¶ 159). Defendant Cantwell himself marched with guards "who were selected for their willingness to 'get physical' with counter-protestors." (Id. at ¶ 160).

As they approached counter-protesters, Defendant Cantwell personally "attacked the [counter-]protestors with mace." (Id. at ¶ 172). A photograph included in the complaint shows Cantwell in the act of spraying counter-protestors. (Id. ). He was later charged "with two felony counts of illegal use of tear gas and one felony count of malicious body injury by means of a caustic substance. He was indicted on December 4 on a felony charge of illegal use of tear gas." (Id. at ¶ 22). This conduct, of course, is not protected by the First Amendment. Other co-Defendants shared this picture, congratulating Cantwell on his violence. (Id. at ¶ 172).

Defendant Cantwell came to the Saturday rally heavily armed, bringing three pistols, two semi-automatic machine guns, and a knife. (Id. at ¶ 303). Then as events spiraled out of control, the Daily Stormer informed its followers to assemble "behind" Defendants Cantwell and Ray. (Id. at ¶ 227). In the aftermath, he told a reporter that he thought "a lot more people are going to die before we're done here, frankly." (Id. at ¶ 303). Reflecting on co-Defendant Fields's attack, he said "[N]one of our people killed anybody unjustly .... [O]ur rivals are just a bunch of stupid animals who don't pay attention that couldn't just get out of the way of the car." (Id. at ¶ 273). He continued, saying "[t]hese people want violence and the right is just meeting market demand." (Id. ).

In light of the specific statements made by Cantwell, the picture of him assaulting counter-protesters with pepper spray, and his joint leadership of various portions of the events with other Defendants (e.g. , the Friday night march, the Daily Stormer's encouragement for its followers to get "behind" him), Plaintiffs have plausibly alleged that Defendant Cantwell joined the conspiracy to engage in the racially motivated violence at the "Unite the Right" events.

iv. Vanguard America

Plaintiffs have alleged that Defendant Vanguard America's fingerprints were all over last August's events. (Dkt. 175 at ¶¶ 24, 34, 50, 53, 63, 67, 77, 81, 91, 93, 96, 114-17, 121, 153, 167, 185, 187, 191, 196-98, 218, 228, 266, 270, 276, 319, 322, 332). Like other organizational Defendants, Vanguard America had a private channel on Discord called "Southern Front." (Id. at ¶ 77). They used this channel to coordinate attendance, with an organizer telling other members "This event is a **BIG DEAL** and offers a chance to link up Vanguard Guys from across the nation." (Id. at ¶¶ 81, 114). Specifically, members were instructed to wear "matching khaki pants and white polos," which members liked because "it's a good fighting uniform." (Id. at ¶ 115). Some chapters planned to bring shields with matching logos. (Id. at ¶ 121). Vanguard America made twenty extra shields for attendees who were unprepared. (Id. at ¶ 191).

Members made their violent plans explicit. "One member of Defendant Vanguard America explained on the Southern Front server after the event that Vanguard America had coordinated with Defendant National Socialist Movement because the Charlottesville event was about violence." (Id. at ¶ 117). While Vanguard America did not normally associate with National Socialist Movement, they needed to in Charlottesville because "NSM fought so hard" and Vanguard America "need[ed] them in a fight." (Id. ). Members also discussed whether to bring firearms, collapsible batons, and various types of knives. (Id. at ¶ 115). A Vanguard America member also posted "a violent drawing of Defendant Heimbach wearing a shirt bearing Nazi and Defendant TWP symbols and the words 'nigger killer' above a tally of 'communists killed,' smiling in front of decapitated black men wearing logos associated with anti-fascist movements." (Id. at ¶ 116). While this could potentially being taken as very dark hyperbole in some instances, in the light of the later events it plausibly alleges a plan for violence.

Defendant Vanguard America members were present at the Friday night event, marching in uniform. (Id. at ¶ 153). Once they had surrounded counter-protesters at the Thomas Jefferson statue, online members encouraged those members present "to physically remove [the counter-protestors]." (Id. at ¶ 167). The violence described above ensued.

Defendant Vanguard America also led the violent events at the Saturday rally. Its members met with Defendants Nationalist Front, League of the South, National Socialist Movement, and Traditionalist Worker's Party to coordinate the march into the park in formation. (Id. at ¶ 196). "Defendant Vanguard America marched to the Park first." (Id. at ¶ 197). They chanted "Blood and Soil!" and carried matching shields and flags. (Id. ). Defendant Fields, wearing the pre-approved uniform, marched with Defendant Vanguard America. (Id. ). Members also carried rods and other weapons. (Id. at ¶ 34). Other groups followed. (Id. at ¶ 198). Members on Discord had said they would "remove whoever is in [their] way" when they got to the park. (Id. at ¶ 191). Consistent with this plan, members used their shields to break through counter-protestors and move into the park. (Id. at ¶ 209). Once inside the park, online members continued telling members physically there to "[j]ust incite a riot already." (Id. at ¶ 218).

At some point, Defendant Fields broke off from the rest of the group and allegedly committed his attack. He was "wearing the uniform white polo and khakis." (Id. at ¶ 332). After his attack, Defendant Vanguard America members congratulated him and celebrated the attack on Discord, stating, "We fucked up many commies .... We hospitalized dozens .... Now you make the next rally and fight for your people." (Id. at ¶¶ 266, 270).

In light of the coordinated marching and shield tactics, the various communications on Discord, and their members' continued admissions of violence, Plaintiffs have plausibly alleged that Defendant Vanguard America was part of the conspiracy to engage in racially motivated violence. Many of these allegations describe conduct that either does not implicate the First Amendment, (id. at ¶ 191 (alleging "Vanguard is fabricating 20 additional shields" for the fighting at the rally) ), or plausibly serves as evidence of other specific violent acts. Claiborne Hardware Co. , 458 U.S. at 927, 102 S.Ct. 3409 ; dkt. 175 at ¶ 270 ("We fucked up many commies .... We hospitalized dozens ....").

v. Robert "Azzmador" Ray

Defendant Ray is a writer at the Daily Stormer, where he published various anti-Semitic and white supremacist content in support of the rally. (Dkt. 175 at ¶¶ 25, 27). He has held himself out as a representative of the Daily Stormer. (Id. at ¶ 27). The complaint alleges he went beyond this role as a publisher of content to become an active conspirator and participant in the violence at the events. (Id. at ¶¶ 25, 27, 62, 63, 66, 74, 84, 88, 92, 93, 110, 116, 118, 143, 150, 157, 168, 169, 186, 187, 202, 217, 226, 227, 317, 318, 323, 325, 326, 328, 329).

Defendant Ray contributed to the planning through the use of Discord. (Id. at ¶ 74). Ray also used the Daily Stormer's website to coordinate other meetings for attendees. (Id. at ¶ 84). Some of these meetings were under the auspices of the Daily Stormer's "book clubs," which Defendant Ray clarified do not actually have anything to do with books and instead were used to organize the events. (See id. at ¶ 93 ("You don't think the [Daily Stormer book clubs] have anything to do with books do you? ... Think boots, not books."). In the days leading up to the rally, Defendant Ray attended in-person meeting with Defendants Cantwell, Mosley, and purported co-conspirator David Duke. (Id. at ¶ 66).

Throughout this time, Defendant Ray used violent language and demonstrated signs of planning for violence. He told a reporter, "We are stepping off the Internet in a big way .... We have been organizing on the Internet. And so now they are coming out. We have greatly outnumbered the anti-white, anti-American filth. At some point we will have enough power that we will clear them from the streets forever ... you ain't seen nothing yet." (Id. at ¶ 88). He wrote that "this rally will put the fear of god into the hearts and minds of our enemies." (Id. at ¶ 92). On Discord, he advised that his followers would "be ready with lots of nifty equipment." (Id. at ¶ 110). He directed his followers to bring tiki torches (for the Friday night march), pepper spray, flag poles, flags, and shields. (Id. at ¶ 118).

This planning came to life on Friday the 11th. Along with Defendants Cantwell and Kessler, Defendant Ray was "issuing orders to the other white supremacists and neo-Nazis, telling them to get in specific formations and assigning people either to march with a torch or on the side as 'security.' " (Id. at ¶ 157). Once they had surrounded the counter-protesters at the statue and torches were being thrown at counter-protesters, he shouted "The heat here is nothing compared to what you're going to get in the ovens!" (Id. at ¶ 169). Within this context, this was a "true threat" not entitled to First Amendment protection. See Virginia v. Black , 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The marchers "began to kick and punch the protesters around the statue, using their torches as weapons, and to beat individuals onto the ground." (Dkt. 175 at ¶ 168). Defendant Ray claimed the marchers "went through [the counter-protestors] like shit through a goose!" (Id. ).

Defendant Ray also attended the rally on the 12th. He carried a banner that said "Gas the kikes, race war now!" (Id. at ¶ 202). He made various anti-Muslim statements as well, calling a woman a "sharia whore." (Id. ). The Daily Stormer also maintained a livefeed of events on its website, where users exhorted further violence. (Id. at ¶ 217 ("We have an army! This is the beginning of a war!") ).

Defendant Ray's alleged actions, and most specifically his leadership and statements at the Friday night rally, demonstrate that Plaintiffs have plausibly alleged that he was an active member of the conspiracy to commit racial violence.

vi. Nathan Damigo and Identity Evropa

Defendant Nathan Damigo attended the events with members of the white supremacist organization he founded, Defendant Identity Evropa. (Dkt. 175 at ¶¶ 28-30, 50, 52, 63, 64, 70, 77, 92, 187, 212, 276, 300-02, 308, 311, 320, 322). Defendant Spencer claims that Defendants Damigo and Identity Evropa coordinated attendance from outside Charlottesville. (Id. at ¶¶ 70, 320). A