Speak No Evil

Everyone applauded when the attorney general took a neo-Nazi letter writer to court. But is he pushing the constitutional envelope?

In late May, Barry Greenberg, the owner of Brochin's Book and Gift Shop in St. Louis Park, got a nasty surprise in the mail: An envelope, addressed in longhand to the "Jewish Book and Gift Shop," containing a leaflet with the silhouetted image of five bodies dangling in a hangman's gallows. The phrase The Fate of All Jews and Race Traitors was printed in boldface type above the scene. A second leaflet read, "Aryans Awake...Answer the Call and Fight For Your Race," and it displayed a photo of marching, torch-wielding Nazi soldiers. Greenberg says he has sporadically received similar anti-Semitic missives since he purchased Brochin's 13 years ago. In the past, though, he didn't have a clue who'd sent them. "I'd never even reported anything to the police, because I didn't think anything could be done," he says wearily. This time was different. The envelope was stamped with a post office box number. And, along with the macabre propaganda, the mailer had enclosed an application for membership to the St. Paul-based National Socialist Party of America. Fifteen bucks a month. Twenty-five-dollar application fee.

Greenberg immediately contacted the Jewish Community Relations Council of Minnesota and the Dakotas (JCRC), which monitors anti-Semitic activities in the tri-state area. As it turned out, at least four other Jewish organizations and businesses around the Twin Cities had been sent the same mailing--including the Jewish Dating Service in St. Louis Park and the Jewish Family Service in St. Paul. At the JCRC's urging, Greenberg and the other recipients contacted the police in St. Louis Park and St. Paul, hoping that the anonymous mailer could be tracked down and charged criminally. Conceivably those charges could include anything from making terroristic threats to harassment to creating a public nuisance.

If the state's criminal code couldn't be used, though, the JCRC knew it was now possible to seek redress in Minnesota's civil courts, where less stringent standards of evidence shift the burden of proof from plaintiffs to defendants. In fact, Steve Hunegs, the JCRC's past president and a former state assistant attorney general, had helped draft Minnesota's civil bias law in 1996. Never before applied, the statute was modeled after a similar law in Oregon (which was used to bankrupt the notorious white supremacist Tom Metzger). It provides for victims of bias-related offenses--crimes in which perpetrators are motivated by racial, religious or sexual bigotry--to seek cash damages in civil court.

The law also empowers the state to sue on behalf of victims. Having waited patiently for a case to come along that would test the new law, the JCRC contacted the office of Attorney General Mike Hatch, who duly dispatched investigators to gather statements from Greenberg and the other hate-mail recipients. His office also tracked down Paul Mullet, the 26-year-old self-avowed "commander" of the National Socialist Party of America who had rented the organization's St. Paul post office box. On June 5 Hatch sued Mullet in Hennepin County District Court under the civil bias law. The suit accuses Mullet, who admitted to preparing but not mailing the offending leaflets, of targeting Jews "in a harassing, terroristic and abusive manner."

Hatch's swift response, and accompanying press conference, in which he denounced Mullet as "a piece of scum," earned him a few minutes on the local TV news, a handful of stories in the dailies, and praise from the JCRC. "We're very appreciative," says Shep Harris, the JCRC's spokesman. While noting that the National Socialist Party of America appears to be a small, locally based group with no more than six or seven members, Harris says the attorney general's action is significant, both symbolically and practically: "He is sending out a signal, not to just the National Socialist Party of America, but also to other hate groups: 'You have to really think about what you're doing or you'll wind up in trouble.'"

But some lawyers and legal scholars are questioning whether Hatch's office may be treading too close to a constitutional cliff. Like much of the hate-crime legislation that has swept the country over the past decade, Minnesota's civil bias statute raises some thorny legal issues, including the definition of free speech and a doctrine of law known as prior restraint (which broadly prohibits the government from suppressing speech in advance).

In the view of Teresa Nelson, staff attorney with the Minnesota Civil Liberties Union, the chief problem is Hatch's proposed remedy. By invoking the civil bias law, he's essentially asking the court to prohibit Mullet "from engaging in the conduct described in this complaint." In other words, a binding order from the bench telling Mullet not to send out any more potentially criminal hate mail, with the implicit caveat that any violation could result in a possible civil contempt citation.

"Courts have long recognized that an injunction against future criminal acts is improper," Nelson contends. "And, to the extent that this guy's acts are expression, whether or not that expression is constitutionally protected, it's improper for the government to impose prior restraint on that expression. Prior restraint is the most egregious form of censorship and it's only in very, very narrow circumstances where it can be justified, such as a state secret that would cause a security breach. It's a very high threshold to justify prior restraint."

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."

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