OPINION:
You don’t have to be a three-star general or a praying grandmother in the U.S. Capitol on Jan. 6 to become the target of our justice system. Lawfare can come for any of us.
A jury recently vindicated our clients — a pastor and his wife — whose family has been under attack by plaintiffs and their lawyers for over three years. What was their offense? They organized a weekly “Trump train,” where people in their community met in a parking lot, prayed and then drove in a caravan around town flying Trump flags.
On the eve of the 2020 election, Wendy Davis — a failed Texas gubernatorial and then-congressional candidate — toured Texas as a Biden-Harris campaign surrogate with a handful of staff. Embarrassingly, Trump supporters tended to outnumber Biden supporters at their campaign stops. To make the optics worse, their bus was followed on the highway by dozens of vehicles flying Trump flags. It was a strong political statement and a humorous image.
Ms. Davis lost her election that year after raising millions of dollars and spending approximately $100,000 of her own. But that loss was apparently not the worst thing that happened to her. She claimed emotional injuries from being surrounded by Trump supporters’ vehicles on Interstate 35. Despite receiving no threats from any of the Trump supporters, and video from inside the bus depicting Ms. Davis and her compatriots as calm — even joking about how their 50,000-pound bus could run the Trump supporters off the road — Ms. Davis and two others on the bus filed a lawsuit under 42 U.S.C. § 1985(3), conspiracy to interfere with civil rights — also known as the Ku Klux Klan Act of 1871.
Using this statute to punish political speech is a dangerous new trend in lawfare and a direct threat to the First Amendment. This lawsuit — aimed at everyday people — likely cost millions of dollars and lasted over three years.
The plaintiffs were represented by over 20 attorneys from a high-powered Washington firm and from left-wing organizations called Defend Democracy and the Texas Civil Rights Project. They hired forensic specialists, private investigators and experts in traffic safety and sociology to prove that these six individuals had “conspired” to prevent Ms. Davis and the other plaintiffs from exercising their civil rights. The only way any of the defendants withstood this legal barrage was through charity and fundraising, which for some became a full-time job.
At trial, the plaintiffs’ case revolved around social media posts taken out of context to insinuate connections and state of mind. In reality, all they could prove was that the defendants were patriotic Trump supporters who didn’t like President Biden.
The weekly Trump trains organized were shown to be respectful of the law. Video of the caravan escorting the Biden bus that day showed a few aggressive drivers (including the bus itself), and one minor crash between a Trump truck and another car that was encroaching dangerously on the truck’s lane. A video of this went viral at the time. But on the whole, this was just a bunch of trucks peacefully driving near the bus, flying flags, waving four fingers in the air and hollering, “Four more years!”
Still, the plaintiffs had the gall to say the case was not about politics.
At trial, the defendants were portrayed as wild-eyed conspiracy theorists who would have stopped at nothing to prevent Ms. Davis from speaking to a handful of college students.
Thankfully, jurors saw this for what it was. Although they did find liability against one defendant — the man who got into a crash behind the bus — they awarded only a small sum and found in favor of the rest of the defendants. While that defendant will likely win on appeal, these people have spent years defending themselves, and not only from the litigation. They have received a constant barrage of harassment and death threats because of the portrayal by plaintiffs and their counsel.
That is the danger of using the Klan Act to sue for civil conspiracies. Social media participation makes it much easier for plaintiffs’ attorneys to piece together supposed evidence of intent to conspire. As exemplified by this trial, even if it isn’t your comment or meme, if you post the next comment, like a comment, are the owner of the Facebook page or fail to remove the comment, it could be used as evidence against you of your state of mind in a supposed conspiracy. Through these otherwise innocuous actions, you are, figuratively, suddenly affiliated with the KKK.
The result of this case was a victory for free speech over lawfare. But it came at a high price. Let us hope the price was high enough for the plaintiffs to deter future attacks on protected political speech.
• Jason C. Greaves is a partner at the Binnall Law Group and was lead counsel for defendants Randi and Steve Ceh in Davis v. Cisneros. Shawn M. Flynn is a senior associate at the Binnall Law Group and a former special assistant U.S. attorney.
Please read our comment policy before commenting.