Fall 1999 Human Rights Magazine

By Harlan A. Loeb

The Fourth of July weekend of 1999 was at the same time the beginning and the end of summer. On the evening of July 2, 1999, Benjamin Nathaniel Smith, an avowed white supremacist and leader in a fiercely anti-Semitic and racist organization known as the "World Church of the Creator," began a two-state shooting spree that claimed two lives and injured nine. The victims were all members of racial and religious minority groups including African Americans, Asians, and Jews. Smith was so consumed by the hate rhetoric espoused by the World Church of the Creator (WCOTC) that much like a drug addict that becomes a slave to his or her addiction Smith, too, was willing to take his own life in pursuit of the perfidious white supremacist objectives of the hate group to which his devotion was absolute.

Smith was not unfamiliar to watch-dog groups; the Anti-Defamation League had been following Smith for the preceding eighteen months in connection with his distribution of anti-Semitic and racist literature that championed "racial holy war" or "RAHOWA." Smith was no stranger to law enforcement agencies either; he had previously been arrested on DUI charges and for violating municipal littering ordinances in April 1999. In fact, Smith acknowledged in a documentary purchased by ABC News after the shooting spree that if "they [the government] won’t let us pass out our literature we will have no choice" but to engage in violence.

Add to the mix Mathew Hale, the self-declared leader of the WCOTC. Hale, who is a virulent anti-Semite and racist, has been twice denied admission to the Illinois Bar by the Illinois Supreme Court’s Committee on Character and Fitness. As "Pontifex Maximus" of the WCOTC, Hale advocates a total separation of the races in order to protect the genetic integrity of the White race from the threats posed by the so-called "mud races," in which he includes Jews, African Americans, and all other racial and ethnic minorities. Hale promotes the elimination of non-White races from the United States by "repatriation to countries of origin." Additionally, Hale noted in the aftermath of Smith’s shooting rampage that he did not mourn the victims of Smith’s rage because their lives were comparable to those of dogs or insects and, therefore, did not warrant any expenditure of emotional energy. At the same time, however, Hale insists that his organization does not condone violence.

It is beyond dispute that Benjamin Smith was substantially influenced and inspired by the racist and anti-Semitic rhetoric of both Hale and his WCOTC to the extent that Smith was willing to take his own life in pursuit of martyrdom. In eulogizing Smith’s suicide to the media, Hale recalled bestowing the WCOTC’s Leadership Award on Smith for his zealotry in distributing the organization’s hate rhetoric. In fact, Smith was credited with distributing over 45,000 pieces of hate literature throughout the suburbs of northern Chicago.

The Smith shooting spree was a profound point of demarcation in the continuing debate on the limits of hate speech; the hate-inspired shooting spree evidences that the hate speech debate can no longer be consigned exclusively to the precincts of abstruse First Amendment theory. The titillating luxury of law school class debate on the constitutional limits of dissent is no longer sufficient because the calculus for determining both the nature and threat posed by white supremacy groups has been recalibrated. Although it is manifest that the parameters of the First Amendment as it applies to hate speech is no longer an exercise in abstraction, constructing the revised hypothesis may be an elusive aspiration.

Every eager law student can reflexively recite both Oliver Wendell Holmes’ mantra for separating incitement from protected free speech as well as the holding in Brandenburg v. Ohio (395 U.S. 444 (1969)), which establishes that abstract advocacy of revolution or societal upheaval is protected by the First Amendment. These legal suppositions are sufficiently ethereal that calculating whether and the extent to which Mathew Hale bears any legal responsibility for the crimes of Benjamin Smith probably requires syllogistic logic that may be beyond the reach of even the most astute Talmudic Scholars. Nonetheless, it is absolutely clear that the vile hate espoused by Hale dramatically influenced Benjamin Smith and certainly was a component of the shooting spree’s causal mosaic. What is the appropriate balance?

The free speech protections of the First Amendment are unequivocally a cornerstone of America’s pluralistic democracy and the Smith shooting spree and all of its ramifications have no impact on the foregoing axiom. Given, however, that there is a dramatically positive correlation between Hale’s bias rhetoric and the deeds of Smith, some free speech absolutists are rephrasing the question with an important introductory caveat:

Recognizing the centrality and importance of the limited circumstances under which the government can impose criminal responsibility for incitement, can and should we impose civil liability for hate speech if a direct causal connection and relationship can be established between the speaker and the actor even if the causal nexus is insufficient to impose criminal liability on the speaker?

In laypersons’ terms, this resolution postulates that Hale should be accorded protection to spew his gutter-level bigotry but at the same time he shoulders responsibility for the consequences of his speech. The syllogism for demonstrating Hale’s causal link to injuries caused by Smith is not particularly opaque.

First, it is clear both in literature and on the Internet, as well as a myriad of recorded statements that Hale champions bigotry and the fundamental need to rid America of the "mud races" in order to protect the White race. Second, it is manifest that both from media interviews and Smith’s history of fierce advocacy on behalf of the WCOTC that Smith was a firm believer in Hale’s mission and rhetoric. Third, Hale and Smith were close associates as reflected by Hale’s presentation of a leadership award to Smith and his anointment of Smith as "Minister of Information." Fourth, the evidence is clear that Smith’s shooting spree was motivated by the white supremacist ideology of the WCOTC. Finally, Hale was personally responsible for instilling in Smith a firm conviction of the "righteousness" of the cause. While Hale has maintained that he does not condone violence, he has never condemned the violent actions of WCOTC members either. At the same time, Hale has stated that the lives of members of the so-called "mud races" are equivalent to those of dogs or insects.

At its conclusion, the syllogism establishes, at least, that Hale imparted a directive to Smith to promote racial holy war and that violence was not sincerely condoned nor condemned as an instrumentality at Smith’s disposal. Coupled with Hale’s admonition that violence committed against non-Whites is tantamount to killing or injuring a dog or insect, the implicit message from Hale to Smith was save the White race, and to the extent violence is necessary, its repercussions in human terms are negligible.

Clearly, Hale, to a significant degree, contributed to the mix of causative factors that set Smith’s shooting spree in motion. Quantifying Hale’s responsibility in precise terms is difficult, but his involvement is significant. Contrasting constitutional law to other areas of law, both criminal and civil liability can and are imposed when causation cannot be measured by degree. Dram Shop laws, for example, exact liability on liquor servers even though it cannot be demonstrated that the "one too many drinks" caused the injury in question. It is merely sufficient that the server contributed to the causative blend. In products liability law, manufacturers of impaired products face liability, without an absolute measure of causation, for introducing defective products into the marketplace.

Defamation and libel both involve speech. Rather than focusing on speech, however, liability for defamation or libel concentrates the inquiry on the impact or injury caused by the defamatory or libelous comments. Hate speech may be measured by injury or damage, as well. Just as the victim of defamation can impose liability based on injury or damage associated with speech, arguably, so too, can the victims of Benjamin Smith's shooting rampage. The inquiry in both cases focuses not on the speech itself, but its impact. Although truth may provide an absolute defense in defamation and libel cases, it is an insufficient and irrelevant distinction when juxtaposed against hate speech. Both defamation and hate speech cause injury.

Astute litigators might offer civil conspiracy or civil RICO as a basis of liability for Hale’s participation in the deeds of Benjamin Smith, thus avoiding the chilling effect on free speech that might associate itself with other theories of liability. Others offer general extrapolations: just as liability cannot be imposed on the Pope for abortion clinic bombings simply because the Catholic Church vocally opposes abortion, liability cannot be imposed on Hale because he champions white supremacy. Although these theories are meritorious in pristine form, differences in state law in the first example and the absurdity of the "slippery slope" in the second warrant a re-assertion of the original question: can responsibility be imposed on a speaker because his or her speech, though not rising to the level of incitement, can be causally linked to an injury?

The answer is unequivocally "yes," but the degree of responsibility may be unsatisfactory depending on the perspective from which one approaches the debate. Hale’s connection to Benjamin Smith coupled with his failure to denounce the criminal conduct of his close associate, creates some degree of moral culpability sufficient, according to some, to disqualify him for admission to the Illinois Bar. However, advocates of this position may not be willing to extend civil or criminal liability. Yet others believe that Hale’s case is no different than the trial of Abdul Rahman in which a blind cleric was convicted in the bombing of the World Trade Center, although he clearly did not participate in the bombing and probably was not even involved in the planning details. Finally, many observers will conclude that free speech is a zero-sum-game and Hale has no responsibility whatsoever for the deeds of Benjamin Smith.

Circular as the subject is, the attendant frustration is healthy. Academics, practitioners, and social policymakers should grapple with this issue. It is, by its nature, a marathon and not a sprint. The complexity of the issue and the costs involved warrant no less.

Harlan A. Loeb is Midwest Counsel for the Anti-Defamation League and is Chair of IRR’s Committee on Civil Rights and Equal Opportunity.