Hate in the crosshairs: lawyers, legislators battle hate crime.

Hate crime. The words alone can conjure up horrific images of savage brutality--an African American man being dragged to his death behind a pickup truck; a gay man left to die hanging from a fence after being pistol-whipped into a coma; the battered body of a young white woman who was gang-raped, tortured, and fatally shot in the face several times by a group of African American men whose leader said her death was payment for "400 years of oppression" by white people.

Reports of these murders have appeared in recent news articles, but hate crimes are anything but new. Historical texts are filled with accounts of bias-motivated violence and acts of intimidation--the Romans' persecution of Christians, the atrocities sanctioned by South Africa's "apartheid" regime, the Nazis' "final solution" for the Jews.

Given this grim history, efforts to put an end to hate-driven threats and acts of violence would seem fruitless. But that hasn't stopped advocates for tolerance--the currently popular antonym for hate--who have in recent years stepped up efforts to at best prevent and at least punish bias-motivated crimes.

Supporters, including President Bill Clinton, say these efforts are essential to ensure a peaceful and civilized society. At a special conference on hate crime in 1997, the president challenged Congress to step into the breach between limited federal hate crime laws and under-enforced state statutes. "It is time for us to mount an all-out assault on hate crimes, to punish them swiftly and severely, and to do more to prevent them from happening in the first place," Clinton said.

But some critics question whether the harm done by bias-motivated crime is so great that it warrants special federal legislation. Others, including tolerance advocates themselves, have expressed concern that efforts to punish hate crime can all too easily cross over into the constitutionally protected zone of hate thought and hate speech.

"Generally speaking, I think we have to combat bad speech with good speech," said Richard Cohen, legal director of the Southern Poverty Law Center (SPLC) in Montgomery, Alabama. "We take a civil libertarian approach."

The center, which has been at the forefront of anti-hate activities for decades, has recently won several civil lawsuits on behalf of hate violence victims. The multimillion-dollar verdicts have all but driven some of the most vocal and widely feared groups out of existence and have helped fund the SPLC's litigation and advocacy machine.

The center's legal strategy--using civil remedies to cripple or destroy hate groups and their leaders financially rather than bringing individual perpetrators to justice in criminal courts--has been hailed as nothing less than brilliant, earning its cofounder and chief trial counsel Morris Dees awards from legal associations like the American Bar Association and Trial Lawyers for Public Justice.

Apprehending, trying, and convicting those who commit hate crimes is a costly, laborious, and often futile process. And because most hate crimes are carried out either by "lone wolves" acting on their own or low-level members of organized hate groups, convictions rarely have much impact on a group's strength.

Pursuing large monetary verdicts against the groups is akin to attacking hate at its roots rather than merely pruning its branches, said Frederick Lawrence, a law professor at Boston University and author of Punishing Hate: Bias Crimes Under American Law. "When you go after the kingpins rather than the local street guys, you decentralize the group. But you have to be sure there is a close nexus between the people or group you're going after and the violence that has been done," said Lawrence.

Establishing that nexus has been key to each SPLC victory. The most recent case is a good example. Last fall, an Idaho jury handed up a large compensatory and punitive damages award against the white supremacist group Aryan Nations, its corporate entity, and several of its members, including the group's leader, Richard Butler. (Keenan v. Aryan Nations, No. CV 99-441 (Idaho, Kootenai County Dist. Ct. Sept. 7, 2000).)

In their complaint, plaintiffs Victoria Keenan and her son, Jason, alleged that two years ago, as they drove by the Nations' 20-acre compound in rural Idaho in Victoria's old Datsun, the car backfired. Within minutes, a truck full of armed security guards came racing out of the compound in pursuit of Keenan's car.

The guards chased and shot at the Datsun for several miles before Keenan drove it into a ditch. They then pulled both Keenan and her son from the car and began to beat them while shouting, "Don't mess with the Aryans."

When Keenan begged for her son's life and tearfully denied shooting at the compound, the guards backed off. "Because you're white," one of them allegedly said, "we're going to let you live today."

After deliberating for 10 hours, the jury awarded the Keenans $6 million in punitive damages and $330,000 in compensatory damages, finding the Aryan Nations negligent in the operation of its security force. The plaintiffs are in the process of enforcing the judgment, seizing and selling the group's assets, including its compound, according to Cohen.

Similar results in cases the center has won in the last decade have hobbled several Ku Klux Klan (KKK) factions and other hate groups, including the neo-Nazi White Aryan Resistance (WAR) and its leaders, Tom and John Metzger.

"The United Klans of America, after a large jury verdict in the mid-1980s, is defunct. The Invisible Empire Knights of the KKK, which had a long history and was one of the larger Klan groups in the early 1980s, is defunct. WAR is a shadow of its former self. The Metzgers are still extremely active, but our lawsuit put a significant dent in their operation," Cohen said. (Details of these cases are available on the SPLC Web site at http://www.splcenter.org.)

Pending cases include one "in federal court in Indiana against Jeff Barry, the Imperial Wizard of the American Knights of the KKK, one of the largest and most vibrant Klan groups in the country," Cohen said. "And we're currently assisting lawyers in California in an action against the [racist/skinhead group known as] Hammerskin Nation. It's in the early stages," he said.

There ought to be a law

Although effective, verdicts in cases like the Keenans' don't go far enough to address the problem of hate crime, many civil rights advocates say. And while 42 states and the District of Columbia have laws specifically addressing bias-motivated crime, they are inconsistent and unevenly enforced, according to Michael Lieberman, legal counsel for the Anti-Defamation League (ADL) in its Washington, D.C., offices.

"Half of these laws don't include as crimes acts motivated by bias based on sex, disabilities, or gender," he said. "And state and local authorities often don't or can't enforce the laws that do exist, either because of a lack of willingness or a lack of resources."

Existing federal statutes that target hate crime are outdated and inadequate, Lieberman said. Unless an offense involves a conspiracy, a state actor, a housing violation, or a violation of another federal statute, federal authorities must hope the case fits within the strict requirements of 18 U.S.C. [sections] 245, the chief criminal civil rights statute, which is decades old.

That law requires the government to prove that a crime occurred because of the victim's race, color, religion, or national origin and because (not while) the victim was engaging in a federally protected activity like voting or going to school.

"For 32 years this law has given backstop authority to the states on this issue. And in no year since [it was passed in] 1968 has there been more than 10 indictments brought under it," Lieberman said.

The solution? Enact a federal hate crime law that would make it easier for federal law enforcement to investigate and prosecute bias-motivated crimes and would expand existing laws to allow prosecution of hate crimes committed against people because of their sexual orientation, gender, or disability, Lieberman said.

That nearly happened last year when bipartisan majorities of both houses of Congress voted to support the Local Law Enforcement Enhancement Act of 2000, which was backed by a host of civil rights groups, including the Anti-Defamation League. The measure was later stripped from a Department of Defense appropriations bill by a House committee.

Attorney General Janet Reno reacted to the bill's demise with dismay, saying that while "Congress cannot outlaw hatred, it should do all it can to combat hate-motivated violence." President Clinton hinted at a veto of the appropriations bill if the hate crime provision wasn't put back in.

But is it really necessary? According to FBI statistics, fewer than 8,000 bias-motivated crimes of all types were reported in 1999, the latest year for which statistics are available. An estimated 1.4 million violent crimes were reported that same year. These numbers would seem to support arguments that additional federal legislation is not needed.

Not so, said law professor Lawrence. "You can't just tote up the numbers to determine the impact. The harm that these crimes cause goes far beyond the individual involved. It affects the whole community."

The SPLC's Cohen agreed. "Simply comparing the numbers is misleading. The James Byrd [dragging-death] tragedy shows that hate crimes have a way of victimizing the whole community and reverberating in a way that others do not. For example, I might read in the paper about a domestic dispute that led to murder, and I wouldn't feel threatened because I'm not in that kind of situation. But if I hear that someone was plucked off the street and beaten up because they're Jewish, then suddenly I'm affected because that person could have been me."

Also, the numbers are unreliable, Lawrence said, because they are based on self-reporting by the states. "Some localities underreport, sometimes for nefarious reasons like not caring about bias crime or sometimes because their people are undertrained--they don't know what to look for.

"In communities where the relationship between minorities and police is tense and not trust-based, you would expect to find underreporting. And, often, gay-bashing victims are embarrassed to come forward. Women, too, are embarrassed to report crimes like rape," Lawrence said.

"There's no question that there are signs of underreporting of hate crimes," Cohen said, referring to the FBI data. "A number of states did not report any crimes."

Civil rights advocates say the underreporting problem is one of the main reasons the federal enforcement act is needed. The proposed legislation would bolster a decade-old federal law requiring local police departments to report hate crimes by providing funds to train officers in hate crime awareness and investigation.

Burning up the wires

While the war against hate crime rages on in courts and capitals, David Goldman is keeping a close eye on an emerging and fast-growing frontline--the Internet. As executive director of the nonprofit HateWatch.org, Goldman heads up a small staff of people who monitor online bigotry and intolerance.

"There are approximately 400 to 500 hate sites," he said. "And what I mean by that is a Web site that is advocating unreasonable hostility or violence against someone because of their race, ethnic background, religion, gender, or sexual orientation. There are about 2,000 to 5,000 hate-related sites, but these are not technically hate sites," he said.

In the Internet's infancy, hatemongers used the Net primarily to spread their message and recruit members. But in recent years, sites have become more sophisticated and more dangerous, Goldman said, providing online help to followers who are encouraged to wreak havoc with the "enemy's" infrastructure and commit violent acts.

"We see things like Web jacking [taking over the content of a Web site], information being stolen, and e-mails being spoofed," Goldman said. "Take AIPAC [the American Israel Public Affairs Committee--a pro-Israel lobby group], their server was hacked by a Muslim group from Pakistan. They were able to get credit card information and the group's membership list.

"But that's just infrastructure. Crashing a server is a pain in the backside, but it's just a machine. The other extremely disturbing evolution is attacks on individuals," Goldman said.

For example, not long after a Denver woman began to help an Internet group monitor hate groups online, she became a target herself. "Someone posted messages on a public chat board that said, `I want to kill Joan Duncan' (a pseudonym). `I don't know why nobody has killed Joan Duncan yet.' `It would make me happy to kill Joan Duncan.' They posted her social security number, her phone number, a photo of her, and a map to her house," Goldman said.

And yet the FBI refused to investigate, Goldman said, because these acts of intimidation were not specific enough to be considered a serious expression of an intent to harm or assault another person. Hate sites and hate speech are protected by the First Amendment unless they can be clearly linked to a "true threat."

What constitutes a true threat is the question at the center of an appeal pending before the Ninth Circuit in Planned Parenthood v. American Coalition of Life Activists. It involves the Nuremberg Files, a now-defunct Web site that advocated violence against abortion providers. The site included bomb-making instructions and a list of providers' names, addresses, phone numbers, and the names of their spouses and children, Goldman said. The names of abortion doctors who had already been murdered were crossed out.

A federal judge in Oregon ruled that the Web site represented a true threat of physical harm and was actionable. (41 F. Supp. 2d 1130 (D. Or. 1999).) On appeal, the defendants are arguing that the test applied by the court--whether a reasonable person would find the information on the site threatening--was too broad. Oral arguments have not been set, but regardless how the Ninth Circuit rules, Goldman said, the case is likely to be appealed to the U.S. Supreme Court.

Goldman said cases like these are good examples of why federal hate crime laws must be fortified. "Congress needs to revisit these laws. It must make it a crime to threaten a target without the requirement that it be a specific threat. The FBI has to have the power to investigate these crimes," he said.

"Otherwise, there's going to be a high-profile case soon, or several, where there is some type of activity like this that leads to murders or assaults. And then Congress will react. And like in the past, with the Communications Decency Act [which was struck down as unconstitutional], it will probably come down hard on content. Rather than react, we know what the evidence is and that the problem is getting worse. We should do something now."

Cohen agreed. "Bias is part of human nature. But that doesn't mean that we aren't making progress or that we can't make progress. It's going to be a constant struggle, and it's going to require constant vigilance."