Robbie Kaplan, Marissa Blair & Lydia Polgreen | 2018 MAKERS Conference
Robbie Kaplan, Kaplan & Company, LLP, and Marissa Blair, Plaintiff, interviewed by Lydia Polgreen, Editor in Chief, HuffPost, on Charlottesville and the First Amendment
- Ladies and gentlemen, Robbie Kaplan, Marissa Blair, and Lydia Polgreen.
LYDIA POLGREEN: I'm going to be selfish for a second, and I'm going to tell Robbie something I've never told her, which is that the day that the DOMA decision was handed down, my now wife and I, who have been together for now 22 years, were in the New York City marriage bureau, applying for our marriage license.
ROBBIE KAPLAN: Oh, my god.
LYDIA POLGREEN: So it was-- and I looked at my phone, and I saw that the DOMA had been overturned. And we were married a couple of days later, and it was-- so even though I didn't know you at the time, you-- and my wife's here today, so you played a big role in making our life together possible. So thank you. Um, yes.
ROBBIE KAPLAN: You know, let me just say one thing. This is the first time I've actually seen that video. You know, Edie passed away this past September at the age of 87. This is the first time I've seen the video since she passed away. And she would be so psyched about this. I mean, she so loved everything she did in the case, and the victory, in her life afterwards, but she would really be into this right here today. And in some ways, she's looking down on us all.
LYDIA POLGREEN: Well, and I think that something that Edie would also be excited about is the case that we're here to talk about today. One of the hallmarks of Robbie's work through the year is this-- not just concerned with something that's obviously a-- has personal resonance for you, but the broader arc of justice.
You have taken on a really challenging case, involving trying to bring justice to the victims and people who were affected by the so-called Unite the Right rally in Charlottesville. And we have with us Marissa, who was one of the plaintiffs in the case.
And I would love to hear from you, Marissa, about your experience that day. Why did you go? Why was it important to you? And what happened?
MARISSA BLAIR: Um, well, me and my fiance, we didn't know if we were going to go at first. We had been told from the start, you know, there was a KKK rally months before. They said, that's JV. This is going to be varsity.
So didn't know if we were going to go. We saw the torch rallies on August 11, and it just looked like something out of the history books. So we were like, you know what? No. This is our city. We're not-- they're not going to come here and not meet resistance. We're going to go. We're going to go. We're going to spread love. We're going to show that there are more good people in the world than there are bad, and that we're going to join together.
So we got there and it was a lot of hate, but we found a group of-- there was clowns in the street, people giving hugs, handing out water, we were singing, everyone was happy. And that's what we went to go do. We went to go find the happy people, to spread love, be with people that were like us and to kind of stay away from, you know, the alt-right, all the hate. We just wanted to say, hey, we're out here, too. You're not going to scare us.
So we went out there, and we were there with my friend, Heather and Courtney, my fiance, and I'll tell anyone. We were so happy in the moments leading right up to that moment. And, you know, car plowed through. It was pandemonium. We didn't know, really, what was going on. We just wanted to, you know, make sure everyone was OK, everyone was safe.
Unfortunately, you know, we lost my good friend, Heather. But a lot of good's come out of it. A lot of people have come together. They've been very supportive. We were out there just to show, hey, everyone's equal. Everyone, you know, deserves the right to be loved.
It doesn't matter what religion you are, or what sex you are, what race you are. We were just out there trying to spread love. And you know, we met hate, but even, you know, Robbie's helping us show, hey, they didn't come out there to just, you know, First Amendment, freedom of speech, right to assemble, right to bear arms. They were out there to incite violence, to scare people.
And we wanted to let them know that we weren't going to be scared. And we're still not scared, but, you know, it's heartbreaking.
LYDIA POLGREEN: I'm sure a lot of you saw on TV and on the front pages of newspapers, if anybody reads those anymore, the extraordinary horrifying photo of your fiance being hit by that car. And I understand that he was quite badly injured, and he's required surgery for his leg and ankle.
MARISSA BLAIR: Yeah, he shattered his tibia in his leg, completely shattered, fractured his ankle. He has two screws in it now. And he's having-- you know, yesterday, he was walking a little bit with a limp. So some days are better than others, but we'll tell you it's more mental than anything.
I'm so glad that he's healed. He's glad that he's healed. He's ready to get back to work. He hates sitting at home, but it's more mental than anything.
LYDIA POLGREEN: Yeah, yeah.
ROBBIE KAPLAN: I remember when I met Marcus he said to me, you know, they can fix my leg. They can put in the pins. He's like, but they'll never fix, completely fix, my mind, from what happened to us that day.
LYDIA POLGREEN: Well, Robbie, why was it important to you to take on this case, to file this case?
ROBBIE KAPLAN: So it really kind of happened as happenstance. I had-- I left a law firm that I was at for 25 years this summer, and we were in our new office space, and started a new woman led law firm. And we were in our new office space with, like, folding chairs and folding tables, kind of moving in, and I might as well say this because I know who's speaking next.
A person who calls himself the President of the United States gave a speech, as everyone knows about, in which he said that there were good people on both sides. And we decided that, in my office, that we were going to kind of watch that speech as a group, all the lawyers in the office and paralegals together, and we did, on someone's computer.
And then I started to think about it a little bit, and I remembered that years ago, my old law firm had brought a case against these really radical, anti-abortion activists who had a website called the Nuremberg files. And on that website, they would put up the photographs and personal information about doctors who were performing abortions.
And then as those doctors were injured or killed, and that's what happened, they would put X's over their faces. And the theory of that case is that what those doctors were doing on that website was not free speech, that it was incitement to violence. And I said, why can't we apply that speech-- that theory here? And three days later, we were on a plane to Charlottesville.
LYDIA POLGREEN: Um, now, you'd think that this kind of work is the work of the Department of Justice, Civil Rights Division, that perhaps in a different administration with a attorney general who wasn't named Jefferson Beauregard Sessions, they'd have a different approach to this. Why have you had to step in here?
ROBBIE KAPLAN: I mean, you're absolutely right. I mean, in ordinary times, and I don't think we're living right now in ordinary times, but in ordinary times, we would have the Civil Rights Division of the Department of Justice would be bringing this case instead of us bringing this case.
People don't know this, actually, but-- many people don't know this, but the Department of Justice itself was formed after the Civil War to fight the Klan in the deep south. That's the whole purpose of having a Department of Justice. And they should be doing that. Unfortunately, I think they're doing some isolated prosecutions. They're prosecuting Fields, but they're not doing the case that we're doing.
We've sued 24 Nazis, white supremacists, and affiliated groups, and I believe, in these times, private people have to step in. And thanks to the generosity of this amazing organization called Integrity First for America, who agreed to fund the lawsuit, that's what we're doing.
LYDIA POLGREEN: And this is not an inexpensive endeavor. I mean, there are multiple defendants. There are multiple defendants in the case, and they have been not so easy to track down. And a lot of them are on the run.
ROBBIE KAPLAN: So probably most of you people know this, but when you bring a case against someone, you actually, in most circumstances, have to personally serve them. Means you have to hand the complaint to them. And handling the complaints to these guys has not been an easy thing.
We've been working with the Southern Poverty Law Center and sharing guys who kind of travel around the country trailing them. We got one guy through his mom because his mom didn't really know who he-- what he was involved with, and she, like, opened his door and we got him that way.
But it was a huge endeavor, and it's still going on. We believe we've served everyone, but we haven't personally served, still, four of them, including Andrew England, who's still in hiding.
LYDIA POLGREEN: Yeah, yeah. What kind of impact has this had on your community in Charlottesville? It's obviously a college town. It's a place that we think of as being tolerant and having-- but talk to me about Charlottesville post Charlottesville.
MARISSA BLAIR: Um, post Charlottesville, I'd say to the rest of the United States, you know, you see UVA, you see Thomas Jefferson. It's a progressive town. And it is. Charlottesville is a quaint little town. Great places to eat, great community, but in the background, it's also been some racial divide. You know?
Some police have been taken to court for racial profile, and things like that, so I think the citizens always knew it was that little bit of racial inequality. But after the fact, Charlottesville has this-- this feel to it now. It's not necessarily bad. It's very hopeful. I will say that.
The street where it happened, you know, it's basically a memorial for Heather. It's amazing. You go there you feel love. But now, Charlottesville, it seems like we're trying to throw blame on a lot of people. They're trying to throw blames on the police officers, city council, you know, everyone, except the white nationalists that came.
And they all came from out of state. They weren't natives of Charlottesville, natives of Virginia. They came out of state. You know? So now Charlottesville is left to pick up the pieces, but the community's been great in providing services just to heal.
LYDIA POLGREEN: Robbie, obviously your career has traversed a lot of different arcs. I mean, you're an absolute top litigator at your firm in New York, and have done a lot of different things. What is the connective thread with the different cases that you've taken on, particularly the ones you've been most passionate about?
ROBBIE KAPLAN: I would say two th-- but first of all, you know, there are really four groups of people who the Nazis and white supremacists and KKK members in Charlottesville hate. They hate black folks. They hate gay folks. They hate Jews. And they hate women. I get three out of four of those, myself. So I'm not their most favorite person in the world, but I don't think it's at all surprising. You heard some of this in the panel the first day.
I don't think it's at all surprising that when someone hates when someone is racist, they're also homophobic. And when someone is sexist, they're also racist. I mean, you see that, and when you look, you should read our complaint. It reads like this horrible dystopian novel, but their hatred to these groups was vicious. And they really, you know--
They have stuff like, we want the Jews to be back in the ovens at Auschwitz. We think all gay men should be locked up in jail. We think all black people should be lynched. It's the same stuff. So first of all, that's always motivated me.
Second of all, I'm going to be a little corny, but I have to go back to my childhood. When I was a kid growing up in Cleveland, Ohio, at a time where if you told me that I would never have to sue Nazis, I would have told you you were nuts. My Torah portion was from Deuteronomy 16. In Hebrew, [SPEAKING HEBREW] or justice, justice, thou shall pursue.
And so I know it sounds corny, but I like to think sometimes those things have real meaning, and I've tried to live up to them.
LYDIA POLGREEN: Marissa, what do you hope will come out of this case?
MARISSA BLAIR: I hope people will start to have those uncomfortable conversations. I think people always knew-- I mean, I honestly, you know, I think there's good in everyone. But to see so much hate, to see so much racism still exists, it's very disheartening.
But I want people to still have hope. I want people to still believe that there are good people in the world. But at the same time, I want people to have uncomfortable conversation. If something's not right, then speak up about it.
Don't just hide and say, oh, it's not me. It doesn't have to do with me. I'm not black, I'm not gay. Heather didn't do that. You know? It didn't matter. She was a white woman who spoke up for blacks, gays, Jews, anyone. And I just want people to have uncomfortable conversations and point out something that's not right instead of sitting there and just saying it doesn't have to deal with me.
LYDIA POLGREEN: Now, Robbie, I know that you're going to hop on a plane after this to go to Hawaii. You're involved in another case. Obviously, we've had a lot of conversations about Times Up here. You're representing a woman who has made allegations against Brett Ratner, a very well-known director. It seems as though they're trying to turn it back and they're suing her.
It does seem as if the law is, in some ways, being used by some of these accused to intimidate people who are just standing up for their rights. What's been your approach?
ROBBIE KAPLAN: Well, you're a superb lawyer, Lydia, because that's exactly our theory. Our client, this very brave woman named Melanie Kohler, who is a scuba diving instructor in Hawaii, hasn't lived in LA for 8 years. As a result of Me Too, kind of was motivated to tell her story, and to tell her truth, and put it up on a Facebook post.
Within an hour, she had a really nasty call from Mr. Ratner's lawyer. And within a couple days, she was sued for defamation. So, as you heard, I kind of like standing up for people like that. And we have a motion to dismiss, saying that the whole point of this suit is to intimidate and threaten other women and to stop them from speaking. And that violates this thing called the First Amendment. It's actually the opposite of Charlottesville case.
That violates this thing called the First Amendment, and we're arguing it tomorrow morning in Honolulu.
MARISSA BLAIR: Awesome.
LYDIA POLGREEN: So you've made a career out of-- yes.
ROBBIE KAPLAN: The people-- the person to be clapping for, really, is Melanie Kohler, who had the bravery to do this. And then, even knowing that someone as rich and powerful is Mr. Ratner was going to sue her, she still did it.
LYDIA POLGREEN: Yeah. Now, we've also been looking a lot at the judicial system as, really, the kind of last place of refuge for justice. You know, we have a highly politicized environment in which queer people, people of color, people who are not part of the religious majority, whatever that is, we have an administration that's stacking the courts in a very unusual way. Are you concerned? Can you talk about what you think you'll be facing, what kind of judges you'll be facing, and the effect that that's likely to have on those communities?
ROBBIE KAPLAN: Yeah. Horribly concerned. So I'm going to give a shout out to a young woman professor, Leah Litman, who teaches at UCLA, and she's brilliant, a former Kennedy clerk. And she did an article the other day that talked about Trump's nominations.
At the circuit level, only 3 out of 13 have been women. At the district court level, only 30% have been women. And for US attorneys nationwide, those are the federal prosecutors in each jurisdiction, only 10% have been women.
Those numbers are shocking. They're completely contrary to the past two administrations, even Republican administrations in the past. And that's going to-- those people have lifetime tenure, at least the judges, and that's going to affect the system of justice for a long time, unfortunately.
LYDIA POLGREEN: Well, we've had a lot of great conversations about justice. Keep fighting. Thank you so much, Robbie, Marissa.
MARISSA BLAIR: Thank you.
ROBBIE KAPLAN: Thank you.
LYDIA POLGREEN: All right. Thank you.