The Washington PostDemocracy Dies in Darkness

Why free speech makes it difficult to prosecute white supremacy in America

White nationalist demonstrators enter Lee Park surrounded by counter demonstrators in Charlottesville on Aug. 12, 2017, before rioting broke out and one woman was killed. (Steve Helber/AP)

There is a tool at the federal government’s disposal that was created in 1970 to take down mob bosses, mafia families and organized criminal enterprises — groups of people with a common ideology who made the United States less safe.

The Racketeer Influenced and Corrupt Organizations Act (RICO) allowed the FBI and the Justice Department to hold accountable not just the low-level henchmen doing the dirty work, but the leaders and organizers behind desks who were making plans and issuing directives.

Since it became federal law and statutes like it were adopted in 35 states, RICO has been used in lawsuits and criminal prosecutions to target New York’s five organized crime families, sex abuse in the Catholic church, corporate executives accused of contributing to the opioid epidemic, and street gangs such as MS-13 and the Bloods and the Crips.

But applying RICO to American white supremacy, an ideology inspiring mass murder, is more complicated.

Inspiration, experts say, is not the same as causation.

“Today’s white supremacists adhere to both a tactic and folklore of leaderless resistance which glorifies lone actors or small cells that have tenuous ties to actual groups,” said Brian Levin, director of the Center for the Study of Hate and Extremism at California State University at San Bernardino. “RICO is not going to be a panacea for a terrorist threat that is increasingly dispersed.”

Federal authorities have used RICO many times to prosecute white prison gangs, but what got the members of organizations such as the Aryan Brotherhood locked up under the statute was not the racism they believed but the acts they committed: crimes including drug trafficking, murder, kidnapping and money laundering.

In the case of mass shootings by those who believe in white supremacy, such as the young white man who allegedly killed 22 people at a Walmart store in El Paso last weekend, prosecutors don’t need RICO to make a criminal case.

But if they wanted to use RICO to hold accountable the collective ideology that radicalized the shooter, they would need to prove that there was an organized enterprise involved with that ideology, that there was a traceable criminal conspiracy to commit violence and that there was a leader or leaders who instructed others to cause harm.

Without that, the collective ideology is not a conspiracy but hate speech. And in the United States, hate speech is not criminal. It’s a right protected by the First Amendment.

Even more challenging for those wishing to take on white extremism is the notion that much of what drives the ideology today occurs in leaderless, sometimes anonymous, corners of the Internet, where there is no clear hierarchy or organizational structure.

In neo-Nazi or white supremacy groups with a chain of command, those in charge carefully regulate what they say and how they say it, said Jeff Grell, a lawyer and adjunct faculty member at the University of Minnesota who teaches a class on RICO.

“The people that are promoting this ideology are very careful about what they say,” he said.

The methodical approach by known white supremacy leaders is similar to tactics used by the radical antiabortion movement of the 1990s, which openly planned how to avoid criminal charges that fall under RICO and maintain First Amendment claims, Grell said.

“People learn,” he said. "All people learn. Even white supremacists."

Amy Spitalnick, the executive director of Integrity First for America, said she thinks what happened at the deadly Unite the Right rally in Charlottesville two years ago demonstrated, in clear terms, the “interconnectedness of the people and groups involved in this movement."

Some are careful about what they say, she said, but not everyone — something her organization’s federal lawsuit against the hate groups and leaders who organized Unite the Right has uncovered. The lawsuit alleges that the groups conspired to commit violence at the rally, and that their own personal and public chats prove it, Spitalnick said.

“What’s happening here is each attack is being used as inspiration for the next,” she said. “This cycle of white nationalist violence has largely gone unchecked in recent years, including by the federal government, which has actively dismantled infrastructure meant to deal with it."

Weaponizing RICO against groups for their ideology is concerning to Levin, who said he worries that it could be used “as a hammer on First Amendment dissenters as opposed to real criminal syndicates.”

“Our laudable desire to combat violent white supremacists might come back to harm us later if the law is used to punish peaceful dissent in grass-roots movements that may have some attenuated violent sliver,” Levin said.

But according to retired law professor G. Robert Blakey, who wrote the RICO statute and is considered the nation’s foremost authority on it, federal authorities should be using RICO to more rigorously investigate white extremist groups without violating free speech protections.

It wouldn’t be easy, he said, but there’s “no excuse” not to try.

“You treat them like the mob or brokers on Wall Street that are stealing people blind,” Blakey said. “RICO is a theory of investigation, it’s a theory of trial and it’s a theory of sentence.”

When it was first enacted, RICO empowered the FBI and the Justice Department to rethink how it used the criminal code to take down organized crime from the inside out. First, RICO gave federal authorities broad investigative powers, including the use of wiretapping and electronic surveillance, to infiltrate potentially criminal enterprises, Blakey said.

Prosecutors were empowered to charge and try large swaths of people in the same case, at the same time, for disparate crimes as long as those crimes were committed in service to the same organization. At trial, prosecutors were able to enter in evidence that may not otherwise be admissible, Blakey said, such as newspaper articles or mob nicknames.

Those arrested on RICO charges were automatically denied bond, and sentences were harsher and longer.

But the intentionally broad statute has evolved over the past 50 years, taking shape through federal Supreme Court decisions. The boundaries of RICO are still being tested, Blakey said.

“It’s not a written law,” he said. “It’s a culture.”

Because of that, he thinks there are ways the statute could be used to take on white extremism in the United States — without infringing upon free speech rights.

“If they’re just preaching it, leave them alone,” Blakey said. “But you have to find out. That’s what the investigations do.”

White extremist gunmen have carried out 17 active-shooter attacks since 2011, according to FBI data analyzed by the New York Times. Those shootings have killed 105 people and injured 110 others, the Times reported.

Perhaps, Blakey said, those 17 gunmen were all lone-wolf attackers, in which case RICO would do nothing. “But you have to investigate it to find out if it is truly individuals.”

And Blakey said those investigations cannot happen thoroughly enough with the resources currently allotted by the FBI and the Justice Department to fight white extremism. Resources have been slashed, programs cut and staffing rededicated to fighting international terrorism since the attacks of Sept. 11, 2001 — nearly 20 years ago.

The Justice Department declined a request to be interviewed for this article; the FBI did not respond to a request for comment.

“The First Amendment is a major block in investigation and prosecution of a white supremacy group,” Blakey said. “But if they’re more than speech and they are action? The only way to find that out is with investigation.”

RICO, Blakey said, was drafted with the First Amendment in mind to curtail the powers of the federal government. To avoid problems raised during the prosecution of communists in the 1950s, RICO requires membership in an organization and participation in criminal behavior.

“What these people are doing is abusing free speech by using violence to spread their ideas, and as long as they do it with violence, they should be investigated and prosecuted,” Blakey said. “The First Amendment does not protect crime.”