Page 11 - Delaware Lawyer - Fall 2019

other cross-burners in Virginia courts, and ultimately, in the Supreme Court of the United States, in a case entitled Vir- ginia v. Black.1 In my briefs and oral ar- gument to the Supreme Court, I asserted that the First Amendment protected the racist messages of the Klan, as expressed in its cross-burning rituals. Having rep- resented racists in the Virginia and Unit- ed States Supreme Courts in Black, the ACLU figured I might do so again in Charlottesville.
I declined the representation, and to quote Huckleberry Finn, “I’m glad of it.” Horribly, the events of the weekend of August 11 and 12 on the UVA cam- pus and Charlottesville would result in the tragic death of Heather Heyer. James Alex Fields, Jr., a white supremacist, slammed his car into a crowd of counter-protestors, killing Heather Heyer and injuring many others. I was in shock as all this unfolded, and also struck by some measure of guilt. Was this what my advocacy in Virginia v. Black had wrought?
There was, however, a certain modi- cum of freedom in having declined to get involved in the Charlottesville events as an advocate. I soon received a phone call from one of my former law students, who was working in the office of Virginia Gov- ernor Terry McAuliffe, asking if I would be willing to serve as an advisor to the Governor’s Charlottesville Task Force. The task force was created to investigate the traumatic events and make recommen- dations on future policies. I was able to say yes. I was also then free to write my book.
While all this was going on, I was buf- feted by other influences, prodding me to rethink all my hard-set assumptions about freedom of speech in America. Julie Woll- man, the President of Widener University, launched a “common ground” initiative, designed to facilitate constructive dia- logue across political, cultural and iden- tity divides, and I participated with her in several of those programs. In the spring of 2019, the University of Delaware held a world-class symposium on hate speech, which I attended as a panelist. Nadine Strossen, my long-time friend and col- league, who had just written a book en- titled HATE: Why We Should Resist It with Free Speech, Not Censorship,2 was one
A central driving view embraced by many supremacists is
the “white genocide” conspiracy theory, asserting that governments worldwide are out to replace white people
and European culture.
of the star speakers. The Delaware confer- ence also showcased experts from around the country who chronicled the power of the internet to weaponize free speech in the service of spreading racist ideology and steeling the impressionable to com- mit mass murder.
The children in our family were acute- ly dialed in. My daughter Erin had just finished clerking for Judge Sherry Fallon in the United State District Court for the District of Delaware. Erin lived with us during her clerkship, often “educating” me on how many in her generation saw issues of racism, sexism and speech. My daughter Corey had just graduated from Yale, where she was an activist at the cen- ter of many speech and identity conflicts on the Yale campus. Abigail, in college at Trinity University in San Antonio, was also a progressive advocate against prejudice in any and all its forms. Our two youngest, Dylan, now a jazz musi- cian at the New School in Greenwich Village, and Caleb, in high school at Tat- nall School in Delaware, were also living in environments in which these conflicts seemed to repeatedly surface.
The Theory of ‘White Genocide’
Piling on, as identity politics gathered accelerating intensity with the presidency
of Donald Trump, many of my own law students at the Delaware Law School sharply cross-examined me. How could I justify the Supreme Court’s many deci- sions protecting hate speech? More per- sonally and pointedly, how could I pos- sibly justify my representation of the free speech rights of cross-burners and the Ku Klux Klan in the Supreme Court of the United States?
These challenges were not abstract aca- demic debates. The challenges were com- ing from the street, increasingly awash in blood. The discord in Charlottesville was directly traceable to the echo booms re- verberating from the Charleston massacre of 2015, in which Dylann Storm Roof, a white supremacist, brutally murdered nine African Americans at the Emanuel African Methodist Episcopal Church. Roof was radicalized by supremacist web- sites. He was not alone.
Consider a central driving view em- braced by many supremacists, the “white genocide” conspiracy theory, which as- serts that governments worldwide, in- cluding the United States, are out to replace white people and European cul- ture. Unite the Right organizer Mat- thew Heimbach argued that the attempts by Charlottesville to remove Confeder- ate statues in the wake of the Charles- ton massacre were a form of this “white genocide.” Chants such as “You will not replace us!” 3 or “Blood and soil!” shouted by the alt-right supremacists in Charlot- tesville were invocations of the theory.
The white genocide theory has circu- lated the globe for years, and has contrib- uted to many terrorist attacks. In 2011, the white genocide theory was what ani- mated Anders Behring Breivik, a white nationalist extremist who killed 77 peo- ple at a summer camp in Norway. Breivik wrote, “I will know that I did everything I could to stop and reverse the European cultural and demographical genocide and end and reverse the Islamisation of Eu- rope.” 4 Robert Bowers, the killer who murdered Jews in the 2018 Pittsburgh synagogue shooting, was a believer in the white genocide theory, stating that Jews were “committing genocide to my people. I just want to kill Jews.” 5 The American
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