Internet ‘hate speech’: How can law enforcement confront this emergent threat?

Organized crime figure John Gotti was on trial in Brooklyn in 1992, charged with murder and racketeering. The federal government’s star witness, “Sammy the Bull” Gravano, testified against the Gambino boss, sealing the so-called Teflon Don’s fate: He was found guilty on all 13 counts and Gravano’s riveting nine days of testimony were central to the verdicts.

In the run-up to Gravano’s testimony, threatening fliers with an image of his face superimposed on a rat’s body circulated around Brooklyn. Gotti was popular in parts of Queens, where he presided over his murderous enterprise and had attained near-mythical status as a benevolent Robin Hood in his Howard Beach neighborhood.

{mosads}The handbill — which even made its way under the windshield wipers of a few government vehicles parked outside the FBI’s Brooklyn-Queens office – was meant to diminish Gravano’s credibility and to signal Gravano, the Gambino family underboss, that there were consequences for “ratting.” The New York Daily News even used the image on its front page.

My boss on the FBI’s Gambino squad, C-16, was J. Bruce Mouw, a J. Edgar Hoover acolyte who took this threat quite seriously. The U.S. government doesn’t like even thinly-veiled threats against its cooperators.

“Jimmy” Mouw loudly barked one frigid March morning, “You and Ike run this one to ground. Investigate who is behind the flier. Talk to Laura (an assistant United States attorney) at justice. See if we have enough to charge. At a minimum, you guys go conduct a ‘knock and talk.’ Read this guy the riot act.”

And with that, Ike and I tracked down the Gotti acolyte behind handbills. Although the Eastern District of New York flirted with the idea of charging him with “obstruction of justice,” ultimately, the “knock and talk” was the only law enforcement tool available.

The past week has felt like a month. A suspicious package intended for delivery to billionaire George Soros ignited a frenetic week of work to intercept a series of improvised explosive devices (IEDs), as defined by FBI Director Christopher Wray. The bombs targeting Democratic politicians, progressive critics of the Trump White House and CNN possessed all the parts to kill and maim.

The crude package bombs allegedly were constructed by a misguided lost soul who found a “cause” in the “Make America Great Again” movement.

Cesar Sayoc, charged by the FBI on Friday, did not fall into any neat package of hatred. He claimed affiliation with Florida’s Seminole Tribe – which quickly denounced him and knocked down his association – and expressed affinity with white supremacy views and neo-Nazis. His social media platform is confusing but hate-filled.

And then, as if a serial bomber wasn’t sobering enough, on Saturday a lunatic anti-Semite, Robert Bowers, allegedly burst into the Tree of Life Synagogue in Pittsburgh and murdered 11 Shabbat worshippers. His hateful invective, unwelcome and curtailed on traditional social media platforms, was hosted on a site adopted by innumerable bigots on the alt-right, Gab.

Though far less covered during a week of criminal insanity, federal hate-crime charges have been filed against Gregory A. Bush in Kentucky. Bush allegedly burst into a Kroger supermarket, after failing to enter an African-American church and murdered two black shoppers. The crime clearly appeared to be motivated by hate, especially after an armed white man who confronted him outside the grocery store was calmly advised by Bush that “whites don’t shoot whites.”

Common to cases like these is that there usually is a virulent strain of bigotry or racism evident in social-media postings. But, like the “Gravano as a rat” handbill,  just what can the federal government do to interdict or prevent hateful views from metastasizing into hateful actions

Answer: It’s complicated — and sadly, there’s not a lot to be done.

The First Amendment right of free speech, one of our most cherished American privileges, was ratified in 1791 and was never meant to defend normal, sane, responsible views. It was meant to defend views to which we are diametrically opposed. And those typically include vile, offensive offerings.

And with that, we must be absolutely certain to distinguish between a “hate crime,” a crime motivated by prejudice and typically involving violence and “hate speech” — often no less benign, but related to speech that “attacks” someone based on race, ethnicity, sexual orientation or religion. One is protected free speech; the other is a crime.

The American Bar Association acknowledges that “hate speech,” in and of itself, is not illegal. But where it leads to action, well, that’s a different matter.

Even first-year law school students understand that shrieking “Fire!” in a crowded theater is not protected free speech. But when does online bigotry and racism become something that law enforcement can notice and interdict?

Again, it’s complicated. Not all vocalized animus toward those who don’t look or worship like us translates into criminal conduct. But does it not set a tone? Or stoke hostility that may lead to violence? Of course.

The distinction between criminal “hate activity” and disgusting “hate speech” may seem clear. But until Congress coalesces in a bipartisan fashion and sorts out what can be deemed fomentation of violent action, we are stuck here, in an impotent capacity. Rail against the disgraceful, insufferable bigotry rampant in social-media circles all we want, but we are neutered by our cherished Constitution and helpless to curtail the voiced hatred.

We’re left with the only available law enforcement tool, the “knock and talk” — knocking on the door and talking to a suspect. We must intuit intent from hateful rhetoric and seek to interdict the infinitesimal amount of hate speech that devolves into violent action. And that discernment is, admittedly, no easy feat. The expressed purpose of the “knock and talk” is to intuit intent: Is the speaker serious? Or is he “popping off,” expressing himself with overheated rhetoric and hyperbole? Is he a credible threat or a benign demagogue?

At a minimum, we read them Mouw’s aforementioned “riot act” — as in, “Excuse me, sir, please know you are on our radar, so shape up.”

It’s been an exhausting and depressing week for our country. Let’s pray that our legislators find some way to strengthen our laws and provide guidance for law enforcement in an effort to get out in front of the next potential political bomber, synagogue shooter or racist grocery store killer.

James A. Gagliano is a retired FBI supervisory special agent and a CNN law enforcement analyst. He is an adjunct assistant professor at St. John’s University and a leadership consultant of the Thayer Leader Development Group (TLDG) at his alma mater, the United States Military Academy at West Point. Follow him on Twitter @JamesAGagliano.