Defending The Undefendable

At the risk of attracting the sort of attention Eugene Volokh has received for defending the free speech rights of anti-Semites, something really fishy is going on with Matthew Hale. In a TIME Magazine article discussing suspects in the murder of U.S. District Judge Joan Lefkow's husband and mother, we find that

The investigation has included a close look at Matthew Hale, one of the U.S.'s most notorious neo-Nazis, who is awaiting sentencing for soliciting Judge Lefkow's murder in 2002. Hale, 33, is the leader of a white-supremacist group formerly known as the World Church of the Creator. From prison, 10 miles from the Lefkows' home, he issued a statement denying any involvement in last week's murders in his weekly phone call to his mother Evelyn Hutcheson, who read his message to a TIME reporter in the tiny kitchen of her East Peoria home: "I totally condemn it ... Only an idiot would think that I would do this." Hutcheson defends her son: "He's a racist. He has a poison mouth. But he's not guilty of this."

Hale has always denied soliciting Lefkow's murder. The two first crossed paths several years ago, when she handled a trademark case filed against his group by a church with the same name. Initially she ruled in Hale's favor, but after the verdict was overturned by an appeals court, she had no choice but to order him to change the name. Hale grew enraged at the reversal. Days after her ruling, he wrote an e-mail to his followers declaring a "state of war" with the judge and blaming "Jew vermin" for the outcome. (Lefkow is Episcopalian, as was her husband, but extremists insist that one or both of them must be Jewish.)

Hale, who has a law degree, sued Lefkow, accusing her of violating his right to practice his religion. And he asked his security chief to find her home address. When the security chief, who turned out to be an FBI informant, suggested that they should "exterminate the rat," Hale said, on tape, "My position's always been that, you know, I'm gonna fight within the law ... If you wish to, ah, do anything yourself, you can, you know?" A jury interpreted that as tacit approval and convicted him. Hale faces up to 40 years in prison. He is scheduled to be sentenced on April 6 by a judge imported from Indiana.

Whatever Hale's intent, his followers are not famous for restraint. In 1999, days after Hale was denied a license to practice law in Illinois because of his racist views, Ben Smith, one of his most devoted aides, went on a three-day shooting spree, killing two and wounding nine--all minorities--before killing himself. Hale was never charged in connection with the murders.

Assuming this account is accurate, Hale faces 40 years in prison... for what? Asking his security chief to find Lefkow's home address? Telling a government informant that he intends to obey the law? His "tacit approval" of assassination?

None of this appears to be illegal. From the Chicago Tribune article that originally attracted the neo-Nazis' attention to Eugene Volokh,

Legal experts agree that the threshold for speech to be construed as "inciting violence" or a "true threat" is high, and must include a specific command to do someone harm.

Just because the judges and federal agents protecting them "may feel menaced and troubled by it doesn't make it a threat," said Eugene Volokh, a 1st Amendment scholar at UCLA's law school. "Publishing someone's address might not be terribly ethical, but it's constitutionally protected."

I'm not sure how "tacit approval" translates into a specific command to do harm. And is it really true that "Hale was denied a license to practice law in Illinois because of his racist views"? Holding racist views is now grounds for disbarment? What about holding extreme political or religious views?

I hate anti-Semites as much as the next guy, but if true, this is shameful. It seems the ABA is just as corrupt and biased as the AMA.

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I would hope that the govt.

I would hope that the govt. has more than just what's mentioned in the article. That's pretty scanty stuff to actually get a conviction with. If that's all they've got, they might be in deep trouble. Especially if they're going to base their case on the remark to the FBI agent.

That is kinda creepy.

That is kinda creepy. Reminds me of the Keith Henson case, where he was convicted of making terrorist threats against the Scientologists for providing the GPS coordinates of their HQ, and making a joke about laser-guided missiles on Usenet. Apparently capability to carry out the threat is not considered relevant to whether or not its a threat, so his lack of access to ICBM's was irrelevant. Ridiculous.

The Hale Creep used to live

The Hale Creep used to live just across the river from me, maybe 5 miles, so I used to see him on the news a lot. He comes across as a very, very intelligent psychopath. Oh, and I just love how he furrows his brow when he's speaking, it makes him seem so sincere and concerned. Personally, I wish the media had marginalized him more, rather than giving him an outlet.

I never understood why his racial views were a rational for denying him a license, but that's kind of what you get when you play the racket. It's a political game with political rules. I met another attorney in town who had been disbarred as a result of some unrelated crime (assault, I think, and nowhere near a courthouse nor with anyone having to do with his legal career.) He approached our LP group with an offer of funding, very generously, a local libertarian paper if we'd start one. His views on libertarianism were just creepy enough that we turned him down.

Umm, what does the ABA have

Umm, what does the ABA have to do with this case?

I think declaring 'war' on

I think declaring 'war' on the judge is enough -- given Hale's history. I'm sure Hale knew there was a possibility that one of his admirers would 'enlist' in this 'war'.

Belchfire, I believe the

Belchfire,

I believe the American Bar Association is the organization that determines the rules of disbarment.

Dadahead,

Declaring a "state of war" seems to be a bit too abstract to properly be considered a specific command to do harm.

It depends on the context.

It depends on the context. If I "declare war" on George W. Bush, e.g., that wouldn't be a crime. But if the leader of a racist 'hate' group 'declares war', not on a world leader but on a relatively low-level judge, and if he reasonably should have foreseen the possibility of someone acting on this 'declaration,' it's not crazy to prosecute him.

I'm not even arguing that he SHOULD be prosecuted for this, though; I'm just trying to show the argument for it. And it's not a bad argument, I don't think; certainly this is not an obvious case of an unjust prosecution (putting on hold for the moment the anarchist belief that all acts of govt. are unjust! (If that is in fact y'all's belief.)).

What I don't get is why Hale was so pissed off at this judge; according the source above, she ruled in his favor! Yeah, she enforced the subsequent ruling of a higher court, but for Christ's sake; don't kill the messenger (no pun intended).

I agree that context

I agree that context matters, but based solely on this TIME article, it doesn't appear that this was incitement. Further, it seems that it was what he said to the FBI informer and not the war comment that got him in trouble.

I too was surprised at Hale's reaction, considering that he is a lawyer and should know that legal procedure forced the judge's hand. He later changed his stance, and according to the Chicago Tribune article cited above, "Turner now says that the appellate judges should have been the object of white supremacists' anger."