UPDATE: Albemarle Circuit Court Judge Claude Worrell dismissed Tayloe's defamation suit on Oct. 28, noting that he had become a public figure when he joined the suit to protect the Confederate monuments, and that the article and quote about his family history did not qualify as libel. Taylor now has 30 days to appeal that decision.
Edward Dickinson Tayloe II is is the descendant of a “First Family of Virginia,” a euphemistic way of saying white, rich, socially prominent before the American Revolution and—through the Civil War—slaveholding.
The Tayloes’ legacy as one of the largest slaveowning families in the state is well-documented. Amidst nearly 30,000 historical papers donated to the Virginia Historical Society by the family itself are plantation ledgers detailing the expansion of the Tayloes’ enslaved work force over the 19th century, an evidentiary accounting of how the exploitation of free black labor allowed the family to amass wealth, land, and political power.
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Facts about the Tayloe family’s slaveholding past—including the regularity with which it engaged in the heartless practice of splitting up enslaved families—appeared in a brief profile of Edward Tayloe published this March by the Charlottesville, Va., newspaper C-Ville Weekly. In response, Tayloe employed a strategy once frequently used by those of means to silence critics that’s seen a resurgence in recent years: He filed a lawsuit alleging defamation and demanding a fortune in damages.
The profile of Tayloe was a brief section in a longer article about the plaintiffs in Monument Fund v. Charlottesville, another piece of litigation in which he is involved. In March 2017, roughly one month after the Charlottesville City Council voted to take down a local Confederate monument, Tayloe and 12 other co-plaintiffs filed a lawsuit against the city to prevent the marker’s removal. That statue—a grand bronze depiction of Confederate General Robert E. Lee on horseback—would gain national notoriety in August 2017 when neo-Nazis (whom President Trump later called “very fine people… there to protest the taking down of, to them, a very, very important statue and the renaming of a park from Robert E. Lee to another name”) descended on Charlottesville to violently oppose its planned removal.
The month after the bloody Unite the Right rally, Charlottesville’s City Council also voted to remove a Confederate statue honoring Thomas “Stonewall” Jackson. The monument plaintiffs quickly added the marker to their lawsuit. “Both monuments are memorials of the War Between the States,” they wrote in their complaint, “and to veterans of that War.” As reporter Lisa Provence notes in the contested C-Ville Weekly piece, the centerpiece of the Confederate monument lawsuit is “whether councilors violated Virginia state law, which forbids the removal of war memorials, when they voted to send the Confederate generals on their way.”
Along with the monument plaintiff profiles, the C-Ville Weekly piece briefly quotes Jalane Schmidt, a University of Virginia associate professor, public historian and well-known African-American activist in the Charlottesville community. After a lengthy list of cruelties the Tayloes forced upon their enslaved laborers, including using family separation as a punishment policy for their enslaved laborers, often sending “rebellious slaves” far from their loved ones as a warning to other enslaved laborers, Schmidt is quoted as saying, “For generations this family has been roiling the lives of black people, and this is what [plaintiff Tayloe] chooses to pursue.”
Now, Tayloe is pursuing litigation against Provence and Schmidt, who are both named in his defamation suit.
Schmidt’s defense is being handled by the ACLU of Virginia. Provence and C-Ville Weekly / C-Ville Holdings, LLC are represented by attorneys Mara J. Gassmann and Jay Ward Brown of Washington, D.C., firm Ballard Spahr. The newspaper, Provence, and Schmidt all declined to comment, citing the ongoing litigation. In court papers, the ACLU labels Schmidt’s remarks “political speech at the very core of the First Amendment's protections.” The filing goes on to describe Tayloe’s defamation claim as a form of legal payback, meant to have a chilling effect on Schmidt’s free speech. “It is intended to send a clear message to others who wish to opine on matters of public concern in which Plaintiff is involved,” the ACLU writes, “disagree or critique Plaintiff Tayloe, then you, too, will face the threat of a lawsuit.”
As the C-Ville Weekly piece briefly laid out, the Tayloes have long been part of Virginia’s gentry class and political establishment, including having ties to Schmidt’s workplace, the University of Virginia, that date to the 1820s. Trace the Tayloe family tree to its 17th century roots in this country and you encounter William Tayloe the Younger, a London-born immigrant to Virginia who held 21 enslaved people at his 3,000 acre estate upon his 1710 death. Edward Dickinson Tayloe II’s great-great-great-great grandfather, John Tayloe II, enslaved an estimated 500 black human beings; his son, John Tayloe III, later enslaved “more than 700 by the 1820s,” according to William Kauffman Scarborough’s Masters of the Big House: Elite Slaveholders of the Mid-Nineteenth-Century South.
In addition to vast landholdings in Virginia and the District of Columbia, by 1851 the family owned “at least seven plantations in Alabama” worked by more than 450 enslaved people who were “valued at $334,250”—or the equivalent of more than $11 million in 2019. Enslaved laborers were rotated amongst Tayloe properties and frequently sold off, with historian Eric Burin writing that “the Tayloe slaves were always being torn from loved ones.”
At the outset of the Civil War, Edward Dickinson Tayloe II’s great-great-grandfather, Benjamin Ogle Tayloe, was rumored to be the wealthiest man in America. A year later, the U.S. federal government paid him $1,095 as compensation for two enslaved women he was forced to emancipate under an 1862 law—making him one of the nearly 1,000 white enslavers who received the only slavery reparations this country has ever paid.
Now Edward Dickinson Tayloe II, a 76-year old portfolio manager and Vietnam combat veteran who previously served as president of the Lee-Jackson Foundation—which, per C-Vllle Weekly “has an endowment of nearly $4 million, according to 2014 IRS filings, and awards scholarships to students who write essays examining the legacies of the Confederate generals,” and helped fund “restoration of the Lee and Jackson statues”—is targeting Schmidt, a 50-year-old African-American public historian whose activism is focused on illuminating Charlottesville’s history of slavery and racial oppression.
Schmidt often speaks at conferences about the early 20th century Ku Klux Klan presence in Virginia; the Washington Post recently wrote about monthly tours she leads of local Confederate monuments, including the Lee and Jackson statues. The violence in Charlottesville had a major impact on progressive organizing in the town, and Schmidt is among a group who have made the uncloaking of history a centerpiece of their activism. In interviews following the white nationalist Unite the Right rally, she has frequently noted that most people, 52 percent, living in Charlottesville during the Civil War were enslaved black folks. (Another 600 black folks, or about six percent of the population, were freed persons often “pressed into service of the Confederacy by pain of whipping.”)
There are multiple monuments to Confederates in Charlottesville — including the statues of Lee, who never visited the town, and Jackson, who passed through post-mortem, as his body was carted to its final resting place—but just one plaque to the majority of people who lived there in that era, a small text-only sign set in the ground: “SLAVE AUCTION BLOCK: On this site slaves were bought and sold.”
The plaintiffs litigating to keep up Charlottesville’s Confederate monuments include, in addition to Tayloe, the Virginia chapter of the Sons of Confederate Veterans (SCV), which strenuously denies any racist motivations. (The national group’s most famous members include U.S. Representative Joe Wilson, the South Carolina politician who shouted “You lie!” at President Obama as he addressed Congress in 2009.) However, leaders of the group—two of whom are interviewed in the C-Ville Weekly piece—casually concede it shares some membership with the League of the South, an organization that openly advocates for southern “political secession” and whose president has written that white supremacy is “merely a fact of life.” George Randall, a Virginia SCV member also affiliated with the League of the South and a vocal figure on Virginia’s Neo-Confederate scene, appeared at the Unite the Right rally alongside former Klan Grand Wizard David Duke.
“You’ve got the bow tie, upscale people tied to the League of the South people who want to secede and are slavery apologists,” Schmidt is quoted saying in the C-Ville Weekly article.
Tayloe argues that Schmidt’s two quotes, along with Provence's inclusion of his family’s slaveholding past, are inherently defamatory because they prompt “inferences, implications, and insinuations” that he is “a racist and an opponent of people of color.” His suit goes on to state that he has been “subjected... to undeserved scorn and humiliation as an alleged racist living in the City of Charlottesville.” He seeks $1.35 million in damages based on “impairment of reputation, diminished standing in the community, humiliation, injury and embarrassment, emotional distress, mental anguish, professional and business harm, loss of earning capacity, loss of income, loss and impairment to contracts, loss of business opportunities and expectancies.”
“The result of the publication” of the C-Ville Weekly article, according to his suit, “was to accuse Plaintiff Tayloe of race-baiting in a political and social atmosphere in Charlottesville, Virginia where, since August 12, 2017, there is virtually no worse label.”
The term “SLAPP lawsuit,” or “strategic lawsuit against public participation,” describes frivolous litigation filed by bad-faith actors to silence critics with exorbitant damage claims and pricey legal fees. Many states, including Virginia, have statutes specifically banning SLAPP filings, and allowing defendants to recoup legal fees if a defamation suit is dismissed on that basis. Filers of SLAPP suits—generally wealthy, powerful plaintiffs seeking vengeance against less privileged defendants—knowingly abuse libel laws, weaponizing the courts as tools of intimidation. Virginia’s ACLU has labeled Tayloe’s C-Ville Weekly suit as SLAPP litigation.
“Under the guise of an action for defamation,” the organization states in court papers, “[Tayloe] seeks to censor the opinion of those who question both his support for the Confederate statues and his motivations for defending them.” The ACLU and Brown and Gassman have all asked that Tayloe’s lawsuit be dismissed for failing to meet the baseline requirements for defamation.
A hearing date has not yet been scheduled by the court.
The details Provence includes about the Tayloe family’s treatment of enslaved people are easily verifiable through the Tayloe family documents and multiple other sources. The piece mostly relied on 2015’s A Tale of Two Plantations, by historian Richard S. Dunn, who spent four decades wading through Tayloe family records to produce his exhaustive book. The article notes that Edward Dickinson Tayloe II is descended from “one of the largest slave-owning dynasties in Virginia”; that in the 1830s the Tayloes “forced 57 slaves to walk 800 miles to Alabama, where most were sold”—a fact cited by Dunn as “the cruelest act [he] found” in the Tayloe records; and that the Tayloes ultimately “marched” more than 200 enslaved people from Virginia to Alabama, devastating the families they separated. (Dunn told me in a phone interview that Provence’s article made “accurate use of [his] scholarship.”) She also notes that Edward Dickinson Tayloe II’s father “was vice-chair of the Charlottesville Redevelopment and Housing Authority when the decision was made to raze the African American community of Vinegar Hill over the objections of its residents, many of whom were unable to vote on the issue because of a poll tax.”
Nowhere in the C-Ville Weekly article does it state that Tayloe’s family history, or his own defense of Confederate monuments, stand as proof of racism. Regardless, the legal definition of defamation rises above implicating speech that perturbs, insults or critiques a plaintiff. Filers of defamation claims must prove “actual malice”—meaning that a defamatory published statement need be not only erroneous, but made "with knowledge that it was false or with reckless disregard of whether it was false or not." Defamation law also excludes statements of pure opinion, such as those expressed by Schmidt, as actionable grounds for litigation, designating them as protected First Amendment speech.
Provence reached out to Tayloe for comment on her article but received no response, and was instead referred by someone in the Tayloe household to Charles L. Weber Jr., a Charlottesville attorney and the designated spokesperson for the Confederate monument plaintiff group. Provence did, in fact, conduct an interview with Weber, who is also a complainant in the Confederate monument lawsuit and profiled in her piece. In his suit, Tayloe—who did not respond to multiple requests for comment on this story—suggests the reporter “should have done more to arrange a meeting with [him], to include submitting a precis of or summarizing to Tayloe what she intended to publish.”
Eden Heilman, the legal director of the ACLU of Virginia, notes that defamation claims must be relevant to the party filing the lawsuit. “He doesn't have the right to invoke standing on behalf of his relatives. So to the extent that Professor Schmidt says this family has “roil[ed] the lives of black people,” there is no standing to say, "Well, she talked poorly about my relative." That doesn't meet the basic definition of defamation.”
“Obviously what's going on in Charlottesville has been a draw nationally for quite some time,” Heilman continued. “The idea that Schmidt shouldn't be able to comment on these sorts of things publicly is problematic. Altogether, you kind of have to ask, "What was the point of Tayloe’s suit?"
Heilman told me she has heard anecdotal accounts from other ACLU colleagues about an increase in SLAPP litigation, and in February the legal news journal Law360 published a piece about the rise in SLAPP suits. Currently, there are 31 states along with the District of Columbia that have laws against meritless litigation. Virginia tightened its anti-SLAPP laws in 2017, though the Public Participation Project, a free-speech advocacy group, still gives the state a “C” for its anti-SLAPP protections.
SLAPP filings most often take the form of defamation lawsuits. The standards for libel—including the bar of “actual malice”—were set more than 50 years ago in the mid-1960s during the civil rights movement. White racists at the time often used baseless lawsuits as a way to retaliate against media outlets that accurately reported on white racial terror violence against African-Americans. They often won, effectively using the judicial system to keep the story of white racism from being told. The 1964 U.S. Supreme Court ruling in New York Times v. Sullivan changed that, establishing stricter standards for qualifies as malicious speech. Today’s defamation standards were put in place specifically to right longstanding misuse of libel laws and Free Speech protections that were used to erase anti-black oppression, twisting it into a fantasy of white victimhood that then demanded restitution for itself.
Perhaps the most curious aspect of Tayloe’s lawsuits is the incongruity between the goals of the two.
In his defamation suit, Tayloe alleges that the recounting of his family history is prejudicial and unfairly taints his public image by dredging up of history that gives rise to misguided assumptions—namely that Tayloe is complicit in white supremacy. In the Confederate monument suit, Tayloe and his co-defendants seem to suggest that they oppose the erasure of history.
Tayloe’s co-plaintiffs in that suit, the Charlottesville nonprofit the Monument Fund, state on their website that Charlottesville’s Confederate statues should remain where they are as a form of "historical evidence… a tangible connection to the past, a catalyst for memory.” They contend that those who want the statues removed are “angry [or] looking for reasons to be angry,” and therefore inclined to “see only those who fought for slavery, and imagine a cheering crowd in KKK costumes” when looking at the statues.
In that notion, there’s not only a whitewashing of the past, but a gaslighting of those who accurately recall it. A “cheering crowd” of Ku Klux Klan members in fact celebrated the impending arrival of the Lee statue in the days ahead of the monument’s 1924 dedication. Washington Post columnist Paul Duggan writes:
The dedication was set for May 21, coinciding with the 1924 reunion of the Grand Camp of Confederate Veterans of Virginia, a week-long festival of Old Dixie pride that was coming to Charlottesville. The city, preparing to welcome the gathering of aged rebs, festooned itself in the Stars and Bars. The anonymous “able and influential citizens” of Klan No. 9 — not to be confused with Klan No. 5, the U-Va. campus klavern — celebrated by burning a giant cross on the evening of May 16 and the next night marched through Charlottesville in their hoods, accompanied by a brass band. “Thousands lined the sidewalks,” the press said, “in eagerness to see the parade.
The KKK and other white supremacists would again rally around those monuments in 2017. Among them would be George Randall, the man pictured with David Duke and a member of the Sons of Confederate Veterans, co-defendants in the Confederate monument lawsuit. They honor those who fought for a treasonous uprising on behalf of a nation whose “corner-stone rests,” in the words of the vice president of the Confederacy, “upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition.”
Historical revisionism and rearguard legal actions cannot undo the American truth of white supremacy and terror, nor the untold amount of damage those inextricable horrors have caused. Instead, if U.S. history teaches us anything, it is that this country’s refusal to reckon with the past proves just how much it remains present.
