According to john powell, a constitutional scholar at the University of Minnesota Law School, bias laws have been challenged in the courts regularly in recent years, with varying results. "Most people don't understand that the First Amendment is very nuanced and complex. It doesn't mean you can't ever limit someone's speech activity," powell observes. "But the controlling of future actions or activities is trickier. You're skating on thin ice when you order someone not to contact somebody because you're afraid they might say something terrible."
Assistant Attorney General Lori Swanson, who drafted the ten-page complaint against Mullet, says this case is different because the defendant's previous speech was fundamentally criminal in nature: "This isn't regulating speech. It really goes to a crime that has been committed. It's not okay to issue death threats, to harass somebody, and it's pretty clear that these materials were sent with only one purpose in mind--targeting Jewish people with the purpose of harassing them. There aren't any First Amendment issues with speech that rises to the level of being a crime."
The MCLU's Nelson concurs that the mailings may well constitute criminal conduct under existing law, including the anti-harassment and public nuisance statutes cited in the attorney general's lawsuit. "But if what [Mullet] has done is truly criminal, then the county attorneys should charge him criminally," Nelson argues. "What the attorney general is seeking to do is to gag this person from future speech, not vindicate past harm."
According to First Amendment lawyer Marshall Tanick, preemptive strikes against purveyors of hate speech are an increasingly common and a "somewhat worrisome" legal trend. "The prior restraint doctrine is tending to bend in connection with race and hate issues as the courts are moving to suppress this kind of commentary on a recurrent basis," he says. "I think the attorney general's action is consistent with broader trends in which these kinds of offenses are given greater attention and less heed is being paid to First Amendment protection."
"The kind of terroristic, threatening attacks on people and groups that emanate from hate groups are subject to more restrictive legal regulations," Tanick adds. "[But] most important First Amendment cases, including those in Minnesota, have arisen when people express views that are reviled and generally detested by the broader community. The more despicable the speech, the more protection it probably needs and should get. Yet the trend in the hate crime area is to provide very narrow First Amendment protection."
In the Mullet case, those constitutional issues may turn out to be moot. The attorney general's lawsuit is in limbo, and it' s not clear whether any future action will be taken. At a June 6 hearing, Hennepin County District Court Judge Bruce Peterson did not grant Hatch's request for an injunction. Yet Mullet--who was not represented by an attorney--voluntarily signed a broad stipulation with the attorney general in which he agreed to "no contact whatsoever with any Jewish business, organization, institution or individual with respect to religious or racial issues until further order of this court." That, says Assistant Attorney General Swanson, is as good as an injunction from the judge. "If Mullet violates the agreement, he could be punished by contempt, which would mean fines or, possibly, jail. We got what we wanted."
Nelson says the MCLU is "closely watching" the case but has no immediate plans to intervene. And Barry Greenberg says neither he nor any of the other recipients plan to independently sue Mullet for financial damages under the civil bias law. (Greenberg adds that he recently turned down an offer to press his case against Mullet on a new People's Court-style television show. "Why give the guy the publicity?" he asks).
Meanwhile, prosecutors in Hennepin and Ramsey County are still weighing the possibility of charging Mullet criminally for the mailings, pending the results of a continuing police investigation. If they do, they may have trouble finding him. At 1077 Van Dyke St. on St. Paul's east side, Mullet's last known address, his name has been scratched from the mailbox. A yellowed mattress leans up in the hallway, right next to the basement apartment where he lived. In the parking lot, a young woman playing catch with her son says she's hasn't seen Mullet for weeks--not since he made the news. "The sheriff's deputies came by five or six times to evict him," she says. "They never could find him and nobody knows where he went. But I'm glad he's gone. He gave me the creeps."