Punish Deeds, Not Speech

Ray Jenkins

October 27, 1990|By Ray Jenkins

A WISE judge once observed that great constitutional rights often are established in cases which involve "not very nice people."

Tom Metzger is not only a not-very-nice person; he is a knave, a rogue, a scoundrel and, well, in the colorful lingo of a barroom, a no-count sonofabitch. For being these things, Tom Metzger has just been fined $12.5 million, and a truck may show up at his door any day now to begin collecting that fine by seizing his old furniture and threadbare clothes.

Metzger is a sad specimen indeed, an oberlieutenant in the hate movement of America -- a movement which, unfortunately, grows as economic conditions worsen. He is an unabashed white supremicist, an anti-Semite, a race-baiter whose chief work is spreading such social pestilences as Skinheads. This week in Oregon, a jury found Metzger responsible for inciting the murder of a hapless Ethiopian immigrant whose misfortune was to simply be on the street at the time the Skinheads were on the prowl.

Why, then, does it bother me that Metzger has been socked with a $12.5 million fine? Simply this: Metzger has never been convicted of the crime. Two of his minions have been convicted, and are now serving life sentence in the penitentiary. But the state of Oregon evidently felt that it lacked the evidence to put Metzger on trial for the murder. And, in fact, Metzger was in California at the time the murder was committed in Oregon.

But this fact didn't dissuade one Morris Dees, the director of the Southern Poverty Law Center in Montgomery, Ala. I have known Dees for 30 years, and while I admire much of his work, I can't seem to shake the notion that he is a person of aggrandizing impulses. I keep remembering the spectacle of his Rolls-Royce parked day after day in the reserved parking space of the director of the Southern Poverty Law Center.

Upon hearing of the trouble in Oregon, Dees sped across the country to file a civil lawsuit against Metzger, claiming he put the Skinheads up to their devilment by his crackpot speeches advocating a "white, Christian America." After a two-week trial, during which the impecunious Metzger bumbled his way acting as his own lawyer, the jury returned the huge verdict rendered against the hate-monger.

But before you say "amen," consider this: What Dees did was convert the civil law, whose basic purpose is to settle disputes between individuals, into an arm of the criminal law. In legal abracadabra, the standard of proof in civil cases -- usually only "preponderance of the evidence" -- is a good deal easier to meet than the higher standard of "guilt beyond a reasonable doubt" required in a criminal prosecution.

Dees, who had already won a similar judgment against the Ku Klux Klan in Alabama, says the verdict "will send a very strong message to hate groups."

Indeed it will. But the question is, will the message stop with hate groups? Let's not forget, there are cases on record where civil law was tortured into criminal law to punish communists in the 1950s, then civil rights groups, including the NAACP, in the 1960s. There was even one celebrated case in which an Alabama jury attempted to destroy the New York Times in 1963 by using the civil action of libel as a criminal action. The U.S. Supreme Court swiftly put a stop to that nonsense.

So the question is, where do we draw the line? How do we permit Metzger to be prosecuted, but not the NAACP? For that matter, will Morris Dees someday be sued for stirring up dubious lawsuits?

For my part, I'm satisfied that if the Oregon police were unable to pin a criminal charge on Metzger, then the matter ought to stop there. When we start punishing people for making speeches that encourage other people to do wicked things, then we're going to encounter big problems in the future in defining what is wicked.

For this reason I hope that the Supreme Court overturns the verdict against that not-very-nice-man, Tom Metzger.

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