WashPo: 'Free Speech Makes It Difficult to Prosecute White Supremacy'

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.

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.

From the Magazine: Two years after Charlottesville, this Republican prosecutor is pioneering a new approach to convicting racist rioters.

The Trump appointee who’s putting white supremacists in jail. https://t.co/RZTHc8nXag

— The Washington Post (@washingtonpost) August 8, 2019

Today I was asked whether the president is a white supremacist. I said yes.

— Elizabeth Warren (@ewarren) August 8, 2019