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Thoughts for Tonight’s SurrealPolitiks Member Chat 20240124

Wow, I got taken for quite a ride this morning regarding the appeal of the Sines v. Kessler civil case.

It turns out I misunderstood an important detail. When we all filed our appeals, these were, initially, all separate appellate cases. The Court consolidated these, and I received notice that the cases were being consolidated.

What I failed to comprehend at the time, was that they were not all consolidated into one case. My appeal was consolidated with that of Jeff Schoep, who does not appear to have taken any action at all in the matter. All the other Defendants were consolidated into a separate case.

Kessler and Hill’s attorneys do not appear to be challenging the verdict at all. They are only challenging the way damages are allocated and responding to the Plaintiffs’ challenge to the Virginia punitive damages cap. They actually admit liability on Count 3 of the action. Stating;

Virginia law requires, for the reasons stated above and in the Appellants’ Opening Brief, that this Court reverse the District Court judgment imposing joint and several liability on the Appellants and Order that they be responsible only for what the jury found them responsible for, the Count III damages, for which they admit they are jointly and severally liable for the compensatory damages awarded for Count III injuries only.

I have a decidedly different argument. Several, actually. Most notably;

The primary thrust of Cantwell’s argument is that Plaintiffs ought not be able to collect a consolation prize of hate speech reparations after suing for a racially motivated violent conspiracy. While the jury instructions may have been given an accurate description of Va. Code Ann. § 8.01-42.1 in their instructions, that Plaintiffs only needed to prove one and not all possible theories of liability on Counts 3 and 4 (racially motivated violence, intimidation, OR harassment), the Defendants, and Cantwell in particular, were sued for violence, not harassment. The Jury found Defendants liable on Counts 3 and 4, but not 1 and 2. Counts 1 and 2 required a conspiracy to commit racially motivated violence. Counts 3 and 4 carried a harassment theory of liability. Suing people with unpopular political views for harassment because they held a public demonstration is fraught with peril for civil rights, and subject to greater scrutiny in the pretrial process for good reason. The Plaintiffs attempted to raise harassment claims in their initial complaint, and those were dismissed by the District Court. The surviving claims were for claims of violence. If the Jury found the Defendants liable for harassment, then they held the remaining defendants liable for something they were not sued for, and the verdict cannot stand. The fact that violence actually ensued is hardly dispositive of the point here raised. Defendants offered video evidence that Plaintiffs’ associates initiated the violence, Cantwell offered evidence that he was stalked by Plaintiffs’ associates in advance of the Events in dispute, and anybody with a television set or newspaper subscription has become all too familiar with Antifa riots in the five plus years since the event.

If the Jury had found a conspiracy to commit racially motivated violence, there would have been a verdict on Counts 1 and 2. Similarly, if, as Plaintiffs contend, and the District Court ruled, Defendant Fields’s car crash was the overt act of the conspiracy of Count 3, the Jury would have had no trouble reaching a verdict on Counts 1 and 2. Since Fields (under threat of execution) pleaded guilty to intentionally striking Plaintiffs with his car out of racial animus, anyone who conspired with him to do such a thing would clearly have run afoul of Counts 1 and 2, and, like Fields, this lawsuit would be the least of their problems. Instead, during jury deliberations and subsequent to announcing they had reached a partial verdict, the Jury asked the Court if “words are a form of violence”. Having been informed they were not, the jury announced they were deadlocked on Counts 1 and 2, returning verdicts of liability on the remaining Counts. The implications here are very obvious. The Jury was happy to find the Defendants liable for the racially motivated harassment component of Counts 3 and 4 because they found the Defendants’ political demonstration distasteful, and wanted them punished for their words. During deliberations one or more jurors said “Words are a form of violence” with the implication that words alone were cause to find on Counts 1 and 2 as well as Counts 3 and 4, and the less unreasonable people in the room drew a line they would not cross. It would also be nonsensical to award $1 in compensatory damages from coconspirators in a racially motivated homicide and assault, especially since Ms. Sines was awarded compensatory damages from Mr. Fields. Yet, her and Mr. Wispelwey were awarded $0 from the Defendants of Count 3. The other Plaintiffs were only awarded a token sum of compensatory damages in a (legally inadequate) attempt to justify the punitive awards, because there were no actual damages to compensate on Count 3. The Jury only sought to punish the Defendants for their demonstration. Not to compensate the Plaintiffs for harm done, because the words did no actual harm.

While Cantwell appreciates their restraint, he was not sued for harassment. He was sued for violence. Without a finding of a racially motivated violent conspiracy, Cantwell cannot be held liable for expressing views others find distasteful, much less for being in the company of others who express those views. This renders the verdict on Counts 3 and 4 a violation of Cantwell’s First Amendment rights and an unconstitutionally vague application of the law. Furthermore, no evidence presented at trial offered the hint of the suggestion that Cantwell ever uttered a word to any Plaintiff, or told anyone to say anything to anybody, or that anyone ever told Cantwell anything about harassing anyone. On the contrary, Cantwell urged his followers not to call attention to themselves in a blog post in evidence as Defense Exhibit 024A. Saying; “For this event, I encourage those with the legal authority, to carry a concealed rearm. Open carry will draw more unnecessary attention to us, so if you do not have a license to carry, please secure your firearms elsewhere and let
us worry about defense.” It would be a terribly repetitive exercise to go through the complaint and the Court’s decisions in this case seeking every example of the Plaintiffs alleging and the Court deciding that this case was entirely about violence and not speech, but the following may suffice.

In Judge Moon’s July 9th decision denying Cantwell’s motion to dismiss, he said the following about 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. And; 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. And; 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. There is nothing in that decision about Cantwell conspiring to harass anyone, and notably where harassment is mentioned, the Court rejected Plaintiff Pearce’s 1982 claim that Defendants violated her civil rights by walking past Congregation Beth Israel. The Court also dismissed claims pertaining to Defendant Invictus walking past Wispelwey’s gathering for the same reason. Plaintiffs never alleged, plausibly or otherwise, that Cantwell harassed or conspired to harass anybody, and had that been the argument they were making, it would have been tossed on First Amendment, failure to state a claim, and other grounds. Similarly, when Cantwell moved for Judgment as a Matter of Law at the conclusion of Plaintiffs’ case, Judge Moon denied the motion by stating, in relevant part; The Court considered the Rule 50 motions raised by Defendants Cantwell and Spencer raised in argument on November 16, 2021, and in Defendant Spencer’s subsequently-filed Rule 50 motion (Dkt. 1451). For the reasons set forth on the record, the Court concluded that neither Defendant Cantwell’s nor Spencer’s motion had established that a reasonable jury would not have a legally sufficient evidentiary basis to find for the Plaintiffs on the issues raised. Rather, Plaintiffs’ evidence had raised a jury issue whether Defendants Cantwell and Spencer had conspired to engage in racially motivated violence. The jury issue raised was a question of racially motivated violence. It was never a question of harassment. The Court has always understood this. Cantwell cannot be found liable for something he was not sued for, and which would violate his First Amendment rights.

Their response does not substantially address this reality. To which they said the following;

First, Cantwell argues that the verdict cannot stand because, according to him, Plaintiffs sued Defendants for racially motivated violence, but the jury could not have found him liable for that violence because the jury was unable to reach a verdict on Counts 1 and 2. (Br. at 2.) Cantwell contrasts Counts 3 and 4 as premised on “harassment,” which he claims the district court had dismissed. (Br. at 2–4.) These arguments are premised on numerous inaccuracies and mischaracterizations of the claims asserted against him. Whether the jury found for Plaintiffs on Counts 1 and 2 had no bearing on whether the jury could find for Plaintiffs on legally distinct claims under Counts 3 and 4. As discussed above, Count 4 (Virginia Code § 8.01-42.1) embraced intimidation, harassment, and violence. Count 3 (civil conspiracy) included a conspiracy to commit violations of § 8.01-42.1. Contrary to Cantwell’s assertions, the Court did not categorically dismiss “harassment” claims. In fact, with two exceptions not relevant here, the Court denied Defendants’ motions to dismiss Plaintiffs’ civil conspiracy claim under Virginia law.10 (ECF No. 335 at 47–49.) That conspiracy claim included a conspiracy to violate Virginia’s hate crime statute, Virginia Code § 8.01-42.1. (Id. at 47.) While the Court dismissed certain of the Plaintiffs’ direct claims under Virginia Code § 8.01-42.1 at the pleading stage, the district court did not dismiss Romero’s or Willis’s claims at the pleading stage or at any other stage. (ECF No. 336.) 

What renders Counts 3 and 4 distinct from Counts 1 and 2 is the potential liability for harassment, which, as stated, I was not sued for. They are obviously wrong, and they obviously know it. They just keep on insisting I was held liable for violence, because they have not a leg to stand on.

The Court handed them quite the opportunity by separating me from my represented co-defendants. This whole time, I’ve been operating under the assumption that while I was not represented myself, I had lawyers on my team. I do not in fact have this benefit at all. I have one co-defendant representing himself who has ceased to participate in the litigation.

On the upside, I will face them myself in oral arguments when the time comes. This stands in some contrast to my prior concern that I’d be sharing oral arguments time with all of my co-defendants.

When this day arrives, it will be absolutely epic. 

Speaking of epic…

It’s one thing to win, it’s another thing to shatter records, and whatever your opinions on Donald Trump, it says something very real about our politics that he is doing just that in the ongoing Republican Presidential Primary.

Yesterday in New Hampshire, a record breaking number of people turned out to vote in the Republican Primary. This, of course, was driven in some part by non-Republicans, 70% of whom voted for Nikki Haley, whereas 75% of Republicans voted for Donald Trump. Votes for Trump broke the record for most received in a Presidential Primary, defeating the prior record held by Bernie Sanders of 152,193 votes. At time of writing, CNN reports Trump obtained 169,166 votes.

This follows on the heels of Trump’s record breaking margin of victory in Iowa, where the previous record for margin of victory in a competitive GOP race was set by Bob Dole in 1988. He beat Pat Robertson by 13% that year. Dole won 37.4% to Robertson’s 24.6%, and George H.W. Bush’s 18.6%. With 51% of the vote, Trump’s margin of victory was 30%, more than double the prior record.  Here too, Democrats and other non-Republicans turned out in droves to try and derail Trump’s path, to no avail.

It is now all but certain that he will win the nomination. No Republican candidate has ever won Iowa and New Hampshire then gone on to lose the primary.

You do not have to like Trump to see good news in all of this. Nikki Haley has been rejected so thoroughly by Republican voters that it warrants speculation as to her motives. They do not include winning the primary election. That much is obvious. Perhaps she just enjoys spending Reid Hoffman’s money. Perhaps (though I think it unlikely), she is trying to help Trump by allowing him to demonstrate his power. If her donors think this is beating him up and weakening him in advance of the general election, they are misguided in the extreme.

She may be the last on two feet in the likely event Trump is convicted and sent to prison on one or more of the many indictments he now faces. In that case, some might hope her to take the nomination at a brokered convention. But this seems about as likely as the old hail Marys of praying for a faithless elector or some similar last ditch fantasy. The United States Constitution says the eligibility requirements for being President of the United States are that one be a natural born citizen having achieved the age of 35, and the Supreme Court has more than once said any addition to that requirement is unconstitutional. So if Trump is listening to election results on an AM radio from a Georgia prison, he’s still President of the United States come January, and if the United States Military must invade Georgia to rescue the President from terrorists who have taken him hostage, Georgia will not be able to resist them.

Texas might be another story.

Much to my shock, Texas has not yet caved to the United States Supreme Court decision permitting Border Patrol to cut down razor wire placed by Governor Greg Abbot in Eagle Pass. In fact, the Texas National Guard is deploying more of it. Representative Chip Roy of the 21st District outright said “Go to Hell”. Rep. Clay Higgins (R-LA), chairman of the House Homeland Security Subcommittee on Border Security and Enforcement, said  “My thoughts are that the feds are staging a civil war, and Texas should stand their ground,”.

It’s an exciting time to be alive. I feel so blessed to be covering and participating in these historic events. Thank you all so much for making that possible. I look forward to discussing it all, this and every Wednesday at 9:30pm US Eastern for our SurrealPolitiks Member Chat.

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