A hate group leader's application to be a lawyer raises important First Amendment questions.
He wants the state of Illinois to call him "Esquire."
For almost a year, Hale, a 27-year-old law school graduate, has fought to get his law license in Illinois. The First Amendment, he claims, prohibits the state bar association from holding his racist views against him.
For Hale and his followers, race — specifically, the white race — is their religion. Hale openly acknowledges that he hates Jews and blacks and would deport them if he came to power. "Hitler's program," he has written, "is similar to what we are proposing."
But Hale publicly disavows violence. Although the motto of his organization is "RAHOWA" — short for "Racial Holy War" — Hale claims that he seeks only political influence through peaceful means.
And that's the rub for Illinois bar officials. As long as Hale steers clear of advocating violence, can the state, consistent with the First Amendment, deny him a law license merely because of his racist advocacy?
'Extermination' and the Bar
So far, Illinois says it can. In December 1998, a special panel of the state bar's Committee on Character and Fitness refused to certify Hale's application for admission to the bar.
"While Matthew Hale has not yet threatened to exterminate anyone," the panel majority wrote, "history tells us that extermination is sometimes not far behind when governmental power is held by persons of his racial views.
The Bar of Illinois cannot certify someone as having good character and general fitness to practice law who has dedicated his life to inciting racial hatred for the purpose of implementing those views."
The case is far from over. On April 10, 1999, a hearing was held before another bar panel. A decision was expected before the end of May. If Hale loses again, he can appeal the case to the Illinois Supreme Court and, ultimately, to the U.S. Supreme Court.
Unless Hale runs out of steam, he probably will prevail eventually. In a series of cases decided in 1971, the Supreme Court made it clear that the First Amendment imposes severe restrictions on the prerogatives of state bar associations. Admission to the bar cannot be denied on the basis of mere membership in a subversive organization.
Unless a bar applicant advocates illegal activity, he probably cannot be denied a law license for expressing extremist political views. See, e.g., Baird v. State Bar of Arizona, 401 U.S. 1 (1971). From the evidence gathered thus far, Hale does not appear to have crossed the line between permissible and impermissible political activity.
The fact that officials probably cannot deny Hale a law license does not mean that the state cannot disqualify him from certain positions. For example, it's unlikely that the state could be required to hire Hale as a prosecutor, no matter how stellar his qualifications might otherwise be, because hiring Hale would surely undermine the public's trust in the even-handiness of the administration of justice.
Cf. McMullen v. Carson, 754 f.2d 936 (11th Cir. 1985). (Klan recruiter could be fired from position with sheriff's department because his employment would undermine public trust and ability of sheriff's office to enforce the law; law enforcement officials "subject to greater First Amendment restraints from most other citizens").
But the fact that lawyers are officers of the court and have a responsibility to uphold the law is probably too general a rationale upon which to base Hale's exclusion from the practice of law altogether.
Can a Racist Be Fair?
Some question the sincerity of Hale's claims that he could take an oath to support the Constitution and that he would treat black litigants, jurors, and witnesses with respect. But Supreme Court precedent limits the degree to which bar associations can second-guess these sorts of claims. And there is some historical precedent, as well, that supports Hale's positions.
James Venable, an attorney who died in 1993, was the imperial wizard of the National Knights of the Ku Klux Klan. Cross burnings and major Klan rallies regularly took place on his property. But this did not stop him from defending black clients.
"I knew he was with the Klan, but that doesn't make any difference to me as long as he does a good job as my son's attorney," the mother of one of his black clients told The Atlanta Journal.
Venable also defended Black Muslims in Louisiana.
"They paid me $25,000 and I used the money to promote the Klan. They knew I was in the opposite direction, but that didn't matter. I defended them as vigorously as I defended the Klan," Venable told The (Memphis, Tenn.) Commercial Appeal in 1979.
As James Venable's career reflects, Hale will not be the first white supremacist with a law degree. Kirk Lyons, the chief trial counsel of the Southern Legal Resources Center that specializes in "litigating civil rights cases involving Southern heritage violations," is a well-known, hard-core racist who long has been a member of the Texas bar.
Richard Barrett, a Mississippi lawyer, is the leader of the Nationalist Movement and advocates "non-majority disenfranchisement." Unless it would be permissible to disbar Lyons and Barrett for their beliefs, it would not be permissible to refuse Hale admission to the bar because of his.
Of course, the public should take no solace in the fact that there are other white supremacists who are lawyers. But, in truth, it is the many covert racists with law degrees who pose a far greater threat to the administration of justice in our country.