Sources seemed to disagree to Sputnik News: some argued that the subpoena posed a risk to the right to free and anonymous speech; others said it posed no such risk, and that it's not a First Amendment issue at all, but a case over allegations of a conspiracy to do violence.
Internal messages sent over the Discord server follow similar themes and are rife with pro-Nazi and white supremacist memes. They were leaked by the independent media collective Unicorn Riot and show chat participants planning for violence before the protest and, afterward, celebrating the car attack which killed 32-year-old Heather Heyer and injured 19 others.
The private gaming chat app Discord was the primary organizing medium employed by neo-Nazis, white nationalists and other members of the so-called alt-right ahead of the deadly Unite the Right rallies on August 11 and 12 of 2017. The server was called "Charlottesville 2.0," as the Ku Klux Klan had held a rally in Charlottesville the month prior.
"The Charlottesville 2.0 Discord server was the primary planning server for the events in Charlottesville and it had individuals from a range of reactionary political perspectives, including neo-Nazis or national socialists, a lot of neo-Confederates, and a lot of White Supremacists," reporter and co-founder at Unicorn Riot Dan Feidt told Sputnik News. "So there is a crossover here between, say, the League of the South, which is a neo-Confederate organization, and the Traditionalist Workers' Party, which was a National Socialist, fascist organization. So it wasn't just wasn't just one type of hardcore racist ideology, it was definitely a range of them."
— Alex Rubinstein (@RealAlexRubi) August 12, 2017
In a federal indictment, Ohio native James Alex Fields is said to have intentionally rammed his car through a nonviolent march on August 12. The day prior, a family member texted Fields to "be careful." He replied, "We're not the ones who need to be careful," and attached an image of Adolf Hitler.
Some of the Discord messages have made their way into a federal lawsuit filed by left wing counter-demonstrators who were injured, two of whom were struck by the car. But because Discord masks the identities of its users, lawyers for the plaintiffs say the identities of some 30 Discord users must be revealed to prove that Unite the Right was a conspiracy "to commit acts of violence, intimidation and harassment," the Washington Post reports.
One of the Discord users, Kristall.night (a play on the term Kristallnacht, which refers to an infamous anti-Jewish pogrom in Nazi Germany carried out just prior to the Holocaust), filed a suit claiming her First Amendment right to free speech would be infringed should Judge Joseph C. Spero grant the subpoena.
— Alex Rubinstein (@RealAlexRubi) August 12, 2017
Kristall.night also claimed that counter-demonstrators were essentially seeking to doxx her. Her lawyer, Marc Randazza, said the subpoena is a "fishing expedition with the ultimate goal of destroying the lives of people Plaintiffs do not like, even though these people have done nothing to harm Plaintiffs."
But since it's a conspiracy case, individualized guilt over an assault didn't seem to matter so much. Spero, a Chief Magistrate Judge, ruled that determining Kristall.night's role as a potential organizer or witness in the conspiracy case outweighed her right to anonymity.
"I'm not a lawyer, but I believe that in legal proceedings, mindset going into a situation is very important because if someone is simply reacting to something without a plan, those kinds of crimes are charged much less severely," Feidt said.
— Alex Rubinstein (@RealAlexRubi) August 12, 2017
"Material like these Discord chats proves that there was a great deal of planning beforehand, and it makes very explicit that the goal was to commit violence, not to simply rally in a park and not simply to occupy space in the park. The goal was to attack people," he added.
"If you want people to fight in the streets, you don't attract them by being nice," Kristall.night wrote in one chat published by Unicorn Riot and viewed by Sputnik News, adding that the far right could recruit more people by "fighting, and inspiring others to do the same."
Organizers wanted to "encourage other participants to plan to commit violence, which is very different than simply going to a park to have some speeches," Feidt said.
In another thread, Kristall.night wrote, "Without complicit whites, Jews wouldn't be a problem."
"I can't believe people believe this," Randazza told The Post. Nonetheless, he argued that protecting unpopular speech is what the First Amendment is intended to do.
Web developer and technologist Chris Garaffa agreed that the the views espoused by Unite the Right participants should not be in vogue but that there is a risk to First Amendment protections posed by the case. He told Sputnik News that it could even blow back on leftists.
— Alex Rubinstein (@RealAlexRubi) August 12, 2017
"The events in Charlottesville rightly drew national attention and anger. However, a critical component to understanding this particular case is that while the behavior of the alt-right and Unite the Right organizers must be condemned and confronted, attacking the right to anonymous free speech will continue to have a more chilling effect on progressive, radical and community-based movements," Garaffa said. "The US government most frequently targets these groups for legal, First Amendment activities while allowing right-wing movements freedom to organize and terrorize."
Garaffa cited the 1995 McIntyre v. Ohio Elections Commission decision by the Supreme Court, which ruled that "Anonymity is a shield from the tyranny of the majority."
— Unicorn Riot (@UR_Ninja) August 15, 2017
"The decision by Judge Spero in this case points to an important fact about online communications: Regardless of the current legal landscape, the surveillance state will have methods for a person's online presence to be tracked and affiliated with their identity unless that person takes significant and advanced action to protect themselves," he said, adding that "private corporations like Discord that have our data, including our communications records, frequently comply with legal subpoenas and National Security Letters."
In another Discord thread, Kristall.night floated the idea of disguising helmets as fedoras, and in another inquired about alternative fuels to use during the torch-lit march, which saw far right demonstrators attack student activists amid chants of "Jews will not replace us" and Nazi salutes.
Kristall.night's personal information will be classified as "highly confidential," Spero ruled, which would essentially keep her identity known only to a small number of people working on the case.
— Unicorn Riot (@UR_Ninja) March 5, 2018
"This lawsuit is not about freedom of expression," Feidt said, rebutting the First Amendment claim.
"It is not about the content of what people wanted to say in the park. It's about the preparations for violence that are very explicit. Court processes very frequently have to deal with information that does not become publicized: there are sealed hearings, things like that. That's a common part of US legal procedures, so I think that the court will be able to obtain a process that matches the privacy restrictions that the judge wants."
The judge did strike the part of the subpoena which sought the Discord message contents, arguing it would be a violation of the Stored Communications Act.
Attorney Timothy Litzenburg, who represents two victims of melee violence at the rally, told Wired in 2017 that the Discord documents may wind up being the "crux of the case," because they show "a little flavor of how [organizers] totally intended on violence and mayhem."
— Alex Rubinstein (@RealAlexRubi) August 1, 2018
Indeed, right wing demonstrators showed up to the protest armed en masse with flag poles meant to bludgeon leftists and makeshift shields, among more conventional weapons.
"The social problems in the United States, driven by bigotry, misogyny, intolerance, are very deep, and a lot of people try to avoid facing that by attributing it to less-relevant factors like automated bot messaging or simply online rhetoric," Feidt said.
As far right groups plan to rally in DC on August 12, marking the anniversary of the Charlottesville Unite the Right rally, the main page for counter-demonstrators was deleted by Facebook because one of the six administrators had activity consistent with the alleged Kremlin-run troll farm the Internet Research Agency.
The ban puts activists safety at risk, Brendan Orsinger, a DC organizer, told Sputnik News after the event invite was taken down.
"The reality is that violence and threats that are motivated by racial bias and bigotry are a very real part of American life and this case and the data in the Discord leaks is a window into the kinds of digital spaces where these problems manifest and affect the real world," Feidt said. "It's not simply an online phenomenon, and it's not simply virtual bot thing."
