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David Horsey | Los Angeles Times

Speech insufficient to halt home-grown terror

– Frazier Glenn Cross, the 73-year-old suspect in the April 13 fatal shooting of three people outside a Jewish Community Center near Kansas City, Mo., has a decades-long record of virulent white supremacism and anti-Semitism. He went to prison in the 1980s for weapons charges and for plotting to kill Morris Dees, founder of the Southern Poverty Law Center. In the same decade, Cross, also known as Frazier Glenn Miller, founded the Carolina Knights of the Ku Klux Klan and the White Patriot Party. Running for senate in Missouri in 2010, he talked about his views with Howard Stern (our politicians “are all a bunch of whores for Israel”), and he talked to Talking Points Memo in 2012 (“Jews call the shots. But white people, we have no power at all”).

Cross called out, “Heil Hitler!” after being escorted into a cop car, and the investigating authorities are treating the shootings as a hate crime. None of the victims were Jewish, but the local police chief said of Cross, “We believe that his motivation was to attack a Jewish facility.” He was charged with murder on Tuesday.

So why didn’t anyone stop him?

The answer is that you can’t arrest someone until you know he is plotting to commit a crime. (The other way lies thought police and “Minority Report.”) Despite all the evidence that Cross hated Jews, there’s no evidence, so far, that Cross was conspiring with other people to commit last weekend’s shootings. Still, there was plenty of evidence that he might have wanted to, which is why it’s surprising that, despite Cross’s history, the government wasn’t keeping tabs on him. “The fact of the matter is that little attention is paid by federal law enforcement to white supremacism as a trigger for domestic terrorism,” Heidi Beirich, director of the Intelligence Project for the Southern Poverty Law Center, told me. The SPLC had Cross on its tracking list for hate groups and extremists, but it’s a nonprofit organization with no law enforcement power. “I was a little shocked when someone told me local law enforcement had never even heard of him.”

Domestic terrorists

According to Peter Bergen and David Sterman of CNN, “since 9/11 extremists affiliated with a variety of far-right wing ideologies, including white supremacists, anti-abortion extremists and anti-government militants, have killed more people in the United States than have extremists motivated by al-Qaida’s ideology” – 34 deaths to 23. Yet Beirich says the government has remained focused on Islamic groups. “You’d want this guy to be on your radar,” she said. But “the Department of Homeland Security doesn’t have a domestic security intel op anymore.” After a DHS report about right-wing extremism leaked in 2009, the backlash from conservatives led the agency to withdraw it. DHS hasn’t issued another report on the topic since. That means “we are more vulnerable,” says Daryl Johnson, the former DHS official who wrote the report and has since left the agency.

Under the name “Rounder,” Cross posted more than 12,000 times on the supremacist Vanguard News Network. He also gave the news site money, Beirich says, and helped with distribution. “He was not just an Internet warrior,” she told me. “He was out on the streets for them.”

This built on a lifetime of similar activism. In the early 1980s, when Cross started his Carolina Knights group in North Carolina, the Southern Poverty Law Center brought a civil lawsuit against him and the group for harassing and pointing guns at black people, and also white people who were friends with black people. The suit resulted in a 1985 consent decree that blocked Cross and the groups from operating a “paramilitary organization” and from harassing, intimidating, threatening, or harming “any black person or white person who associates with black persons.” But according to the SPLC, Cross kept at it, changing his group’s name to the White Patriot Party. He was found guilty of violating the consent order, sentenced to six months in prison and barred for three years from associating with members of his group or other racist groups.

At that point, Cross went on the lam. But then he got picked up on weapons and conspiracy to murder charges. And in a plea bargain for those crimes, he agreed to testify against other Klan leaders. Beirich said that while some supremacists saw Cross as a traitor, others excused him, blaming the government for forcing him to testify.

Thought crimes?

Why weren’t Cross’ many hate-tinged statements enough, on their own, to cause him more legal trouble? This is where the debate moves from tracking suspected terrorists to arresting them for what they say rather than for what they do. The First Amendment tradition protects speech that is hate-tinged and offensive along with every other kind. In 1992, the Supreme Court went so far as to overturn the conviction of a teenager who allegedly burned a cross on the lawn of a black family that had moved into his white neighborhood because he’d been prosecuted under a Minnesota law that targeted insults or attempts to provoke violence “on the basis of race, color, creed, religion or gender.” The law was unconstitutional because it targeted messages “based on virulent notions of racial supremacy,” instead of applying to all kinds of threats, or fighting words.

Plenty of other countries have signed international conventions banning hate speech. Not the United States. In this country, incitement becomes criminal only if there is a probability of imminent violence. If you think we have the balance wrong, you have company. The former New York Times columnist Anthony Lewis wondered late in his career whether the First Amendment had been interpreted to set too high a bar on punishing “genuinely dangerous” speech. “I think we should be able to punish speech that urges terrorist violence to an audience, some of whose members are ready to act on the urging,” Lewis wrote. Courts in other countries have allowed for this, putting more weight on getting rid of hate propaganda than on promoting free speech.

But the majority of the current Supreme Court is in love with First Amendment absolutism, and not just when it comes to campaign spending. In 2011, the justices voted 8-1 to prevent the family of a soldier from suing Fred Phelps and his Westboro Baptist Church for emotional distress. “Speech is powerful,” Chief Justice John Roberts wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.”

Contrast this with a 2013 ruling by the Supreme Court of Canada, which voted unanimously to uphold a $17,500 fine against a man who distributed four anti-gay fliers in Saskatchewan. The fliers called gay relationships “filth.” The court said the government could outlaw speech that “exposes, or tends to expose, persons or groups to hatred.” It defined hatred as “those extreme manifestations of the emotion described by the words ‘detestation’ and ‘vilification.’ ”

That would never fly in the United States, which might seem like the wrong call after a stock character in a Jewish nightmare spewed hate for decades and then turned violent. In his case, the warning signs merited attention from law enforcement – they should quit training all their resources on Islamists and start watching people like Cross. Still, seeing hate speech, in general, through the lens of his actions is a bad idea.

Emily Bazelon is a Slate senior editor and a fellow at Yale Law School. She is the author of “Sticks and Stones.”