A Critique of Using Civil Litigation to Suppress White Supremacist Violence

• Date: 01 December 2011
• Author: Pete Simi,Brett Garland
• Published date: 01 December 2011
• DOI: 10.1177/0734016811417855
• Subject Matter: Original Commentary

Original Commentary
Criminal Justice Review
36(4) 498-512
A Critique of Using Civil
ª 2011 Georgia State University
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Litigation to Suppress White
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DOI: 10.1177/0734016811417855
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Supremacist Violence
Brett Garland1 and Pete Simi2
Abstract
The Southern Poverty Law Center (SPLC) has employed a litigation strategy to dismantle White
supremacist organizations and reduce racist violence. Like all social control strategies, lawsuits
brought against these organizations can create unintended consequences that undermine
intended goals. This article explores the assumptions underlying the litigation strategy and
presents several arguments that question the utility of this approach. Utilizing theory and
research from a variety of academic disciplines, both perceptual and organizational consequences
of litigation are addressed, with an emphasis on potential violent outcomes. In particular, the
article explores how civil lawsuits against White supremacists might influence organizational form
and structure, and the effect on leadership in the movement is examined. The impact of litigation
on feelings of injustice and the strength of collective identity is also investigated. In addition,
potential impediments posed to the lawsuit strategy by the Internet and modern technology are
explored.
Keywords
legal issues, courts/law, terrorism/homeland security, law enforcement/security, crime in complex
organizations, criminal victimization, violent behavior
On November 13, 1988, Mulugeta Seraw, an Ethiopian immigrant, was beat to death by three local
racist skinheads on the streets of Portland, Oregon. Not long afterward, the Southern Poverty Law
Center (SPLC) began investigating the case and concluded that the Portland-area skinheads were
acting as operatives of the California-based, neo-Nazi organization, White Aryan Resistance
(WAR). The SPLC continued this line of reasoning by arguing that WAR should be held liable for
the skinheads’ murderous actions. A civil trial ensued and a jury of Oregonians agreed with the
SPLC, awarding a $12.5 million settlement to the victim’s family (Langer, 2003). For those seeking
to strike a blow against the White supremacy movement and send a message that racial violence will
not be tolerated, the settlement seemed like the perfect response to such a horrific tragedy. That the
1Department of Criminology and Criminal Justice, Missouri State University, Springfield, MO, USA
2School of Criminology and Criminal Justice, University of Nebraska, Omaha, NE, USA
Corresponding Author:
Brett Garland, Department of Criminology and Criminal Justice, Missouri State University, 901 South National Avenue,
Springfield, MO 65897, USA
Email: BrettGarland@MissouriState.edu

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Garland and Simi
499
SPLC’s legal strategy was an effective tool in dismantling White supremacist organizations seemed
obvious. Further, if litigation effectively dismantled these organizations whose ideologies promoted
hatred and violence, then the perception was that it must be an effective tool in decreasing White
supremacist violence.
The SPLC uses civil litigation as a social control strategy to bankrupt and dismantle White
supremacist organizations with the expectation that hate violence will decrease. Unintended
consequences frequently emerge in the application of social control strategies (Boudon, 1982;
Merton, 1967). Gang suppression tactics, for example, have inadvertently increased group cohesion
among members (Klein, 1971, 1995), sting operations have produced more crime by creating
offending opportunities (Felson, 2002; Gottfredson & Hirschi, 1990), and strategies used by the
anticult movement have increased the chances of cult violence (Barkan & Snowden, 2001).
Although this legal strategy has been used for over 30 years, it may be producing unintended effects
that increase rather than decrease racially motivated violence. In addition, the litigation may help
sustain the White supremacist movement rather than paralyze it.
Applied in numerous court cases by the SPLC, the litigation strategy, while highly successful in
the courtroom, is founded on untested assumptions and may produce negative, unintended conse-
quences. In this article, we critically analyze the assumptions underlying the use of litigation against
White supremacists. We begin the article by explaining the SPLC’s litigation strategy and offer
examples of how it has been applied. Next, we provide an overview of the modern-day U.S. White
supremacist movement. We then address potential perceptual and organizational outcomes of the
litigation strategy by utilizing theory and research from a variety of academic disciplines. Specifi-
cally, we explore how litigation against White supremacist groups may affect the influence and
reach of movement leaders and the structure of their organizations. We give significant attention
to how the impact of the SPLC lawsuit strategy may be offset by technological advances, most nota-
bly the Internet. Further, we explore how perceptions of victimization and group identity may be
influenced by litigation. The article concludes with an overall assessment of the litigation strategy
and offers considerations for the future.
The SPLC Litigation Strategy
In the postcivil rights movement era, a number of organizations emerged to help ensure that legis-
lative victories such as the Civil Rights Act of 1964 and 1968 and the 1965 Voting Rights Act were
substantively applied (Jenness & Broad, 1997). One of the organizations that grew out of these
efforts was the SPLC, which was founded in 1971 in Montgomery, Alabama, by Morris Dees and
Joe Levin (Langer, 2003). In 1980, the SPLC established Klanwatch in order to combat hate vio-
lence through litigation, education, and intelligence gathering. Since that time, the SPLC has
become one of the nation’s most powerful civil rights organizations winning various honors in part
for its work in monitoring extremist groups.
The SPLC litigation strategy involves initiating lawsuits aimed at bankrupting White supremacist
organizations and their leaders. The strategy assumes that without a financial base of support and
tangible resources, White supremacist groups will be prevented from promoting their agenda which
includes racist violence (Dees & Bowden, 1995). Morris Dees, chief architect of this legal strategy,
articulates the goal of civil litigation as follows:
Our goal . . . has been to hold the leaders of hate groups responsible for the violent actions of their
members. First, we aim to bankrupt the organizations or individuals responsible for hate crimes. Second,
we seek to separate the foot soldiers from the leaders, whose combined charisma and intelligence make
them less replaceable. Through these means, we hope not only to put hate groups themselves out of

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Criminal Justice Review 36(4)
business, but to stop their leaders from encouraging so many youths to perpetrate hate violence. (Dees &
Bowden, 1995, p. 3)
Using vicarious liability as its legal foundation, the SPLC’s litigation strategy consists of demon-
strating that a White supremacist organization and its leaders are legally responsible for the actions
of their members. In establishing vicarious liability, the SPLC has used agency theory to guide its
approach (Dees & Fiffer, 1993; Langer, 2003; Leavitt, 2001; Saccuzzo, 2001). Agency theory is
based on the principle that a corporation can be held responsible for the actions of its employees
(or agents) if they are acting in the interests of the corporation (West’s Encyclopedia of American
Law, 1998). What the SPLC has accomplished that is innovative is to portray White supremacist
organizations as corporations, thereby making them susceptible to this type of litigation (Dees &
Fiffer, 1993). According to Braithwaite (1996), the formal organizational structures, or semblance
of such structures, among groups like the Ku Klux Klan (KKK) and WAR make it easy to establish
agency relationships. In addition to and in conjunction with agency, other legal theories have been
employed, including aiding and abetting, civil conspiracy, and negligent or reckless selection (Dees
& Bowden, 1995; Langer, 2003).
Civil litigation has strong appeal as a social control strategy. Obtaining a favorable verdict against
a defendant is much easier in civil court. While criminal prosecutors must establish a defendant’s
guilt beyond a reasonable doubt, civil courts only require a preponderance of the evidence. Many
states require only some majority of votes (e.g., 9 of 12 jurors) in civil actions to decide a case rather
than the unanimous decision required in criminal trials. Six-person juries are common in civil courts
and indigent defendants are not automatically provided access to counsel (Hazard & Taruffo, 1993).
Further, punitive damages may be inflicted, which can require the payment of large sums of money
as punishment for a defendant’s wrongdoing.
The SPLC has a long track record of successful litigation against White supremacist organiza-
tions which often results in multimillion-dollar judgments (SPLC, 2011). For example, the United
Klans of America, Inc., (UKA) incurred a $7 million verdict after the 1981 murder of Michael
Donald. The 19-year-old was abducted, beaten, and strangled by two UKA members who later
slashed the young man’s throat and hung him from a tree. In the civil case, the SPLC showed that
the two Klansmen had conspired with a higher ranking member of the UKA to commit the murder
and received his approval...