Vicarious liability is a legal term defined as, “The tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship, to exercise such care as a reasonably prudent person would use under similar circumstances.” 1
In 1988, two young American men beat to death Mulugeta Seraw, an Ethiopian graduate student. Mulugeta’s only crime, according to them, was his skin color. As it turned out, these men were members of the White Aryan Resistance (WAR), a white supremacist group founded by neo-Nazi and KKK grand dragon, Tom Metzger. Metzger began his racist career in 1979 by patrolling the U.S./Mexican border in San Diego as a private citizen stating he was concerned about illegal immigration. When he began hosting a television show aimed at white nationalism, his anti-immigrant stance quickly became an anti-anything not white, Christian and male. Additionally, he sponsored a rock concert for Aryan youth which is how the Seraw killers were introduced to his racist gutter spewed antics. 2
The Southern Poverty Law Center sued Metzger using the vicarious liability concept and won. The court found that because Metzger was an authority figure, had access to media and espoused racist propaganda and that these young men claimed to be influenced by him, he was also liable for Seraw’s death.
Because of the Metzger decision, many of today’s white supremacist websites try to stay clear of suggesting violence. But an argument can easily be made that their readers are obviously being influenced by such talk (written word) by simply scrolling through the comments section or chatlines these sites maintain. Here you will routinely find comments to articles published by said websites not only condoning but advocating for violence against non-whites.
On June 17, 2015, Dylann Roof entered the Mother Emmanuel Church in Charleston, South Carolina and proceeded to murder nine African American parishioners and injure three others. He later testified that he was influenced by the Council of Conservative Citizens (CofCC) website. On the CofCC website, Roof read article after article stating falsely that blacks were killing and raping whites at alarming numbers. CofCC denied responsibility, but one only has to look at their website and see that they were openly advocating a race war. Republican politicians who had spoken at CofCC events quickly tried to distance themselves from the group and were forced by public outcry to return thousands of dollars in campaign donations by the president of the CofCC, Earl Holt.
The argument against hate speech
Essentially, I am advocating for a restriction on free speech. But what about the 1st Amendment you ask? I’m in agreement with the 1st Amendment up until the point it physically harms individuals. The popular expression that you cannot yell fire in a crowded theater when there is no fire is an example of reasonable 1st Amendment restrictions. Charles Manson telling his followers to kill innocent people is another. The Metzger decision was an extension of this decision.
Today’s hate speech is spread through websites. Victor C. Romero of Penn State Law argued in the “Columbia Human Rights Law Review” that censorship of the 1st Amendment should be considered when three criteria are met:
1) The message is of racial inferiority.
2) The message is directed against a historically oppressed group.
3) The message is persecutorial, hateful and degrading. 3
He continues, “There are, nonetheless, two essential harms wrought by hate speech that require redress, one direct and one indirect. Each hateful message displayed on white supremacist websites aims to put the person of color in her place and reinforces the current American racial caste system, which consciously or unconsciously, promotes the idea that non-whites are inferior to whites. The second harm is an indirect one: people of color are indirectly harmed by the white supremacist website because of its cast-efficient nature as a propaganda disseminator, leading to the increased risk that hateful speech might turn into hateful acts.” 4
The case against Trump
People have the right to free speech. They also have the right to say things that are deemed hate speech, but only as private citizens and only if that speech does not hurt anyone else. It is when they advocate such speech into action as public persons, persons of influence, persons that meet the criteria as set forth in the definition of vicarious liability that they then become liable. The Supreme Court has stated that “public figures are those who have a more prominent societal role and greater access to the media than private figures…”
Trump fits this profile. He has been a public figure since the 1980’s. He ran for president, and is now the president of the United States. You cannot get more public than that.
- Trump began his presidential bid with racist speech when he stated that Mexican immigrants were drug dealers, rapists and murderers.
- Then he called for a Muslim Ban because he believed that only Muslims could be terrorists.
- He attacked a Muslim Gold Star family and assumed that the wife was not allowed to speak simply because she was a woman when the truth was that she was overcome by grief.
- He claimed that African American communities are filled with drug dealers and murderers to the extent that people cannot walk down the street without being shot.
- He refused to denounce David Duke, the most famous living KKK leader.
- He started the birtherism movement against our first African American president, claiming that Barack Obama was not a U.S. citizen.
- In November 2015, Trump condoned the beating of a Black Lives Matter Protester at his Alabama rally stating that is was “justified.” When other supporters beat up a homeless Hispanic man, his response was that they were “passionate.” He told supporters at rallies to “knock the crap out of them,” and then offered to pay their legal fees.
- He repeatedly shared anti-Semitic tweets during the campaign.
- He also claimed that a federal judge hearing the Trump University case could not be unbiased towards him because the judge was “Mexican.” Justice Curiel was in fact born and raised in the U.S.
By American Freedom Party – https://www.facebook.com/A3rdPosition, Public Domain
Furthermore, the Trump campaign had a known white supremacist as a delegate during the 2016 Republican National Convention. William Daniel Johnson is the chairman of the American Freedom Party, which began in 2010 in response to the election of Barack Obama. When media easily recognized him as a white supremacist leader, the campaign quickly asked him to decline the delegate position. He did decline, but that didn’t stop Trump from accepting $4,125 from Johnson in campaign donations after the convention. Trump further accepted $5,800 in advertising and robocalls in which Johnson claimed presidential candidate Evan McMullen was a homosexual.
Trump's long history of hate
But Trump’s racist history goes back much further.
- In the 80’s his company was sued twice by the U.S. government for not allowing African Americans to rent apartments in his buildings.
- The New Jersey Casino Control Commission fined him $200,000 for requiring African American employees to leave the floor of his casino whenever high roller racist clients were present.
- His own president of Trump Plaza Hotel, John O’Donnell, wrote in a tell all book that Trump called black people “lazy.” Trump even stated in 1997 interview that O’Donnell’s statements about him were “probably true.”
- Then there’s the case of Trump taking out a full page ad in a New York paper to call for the execution of the Central Park Five. Even though it was much later determined that all of the five young African American men were innocent and that their confessions were coerced, Trump still maintained that they were guilty and continues to do so today.
As president, Trump continues to race-bait and advocate systemic racism by signing blatantly racist executive orders like the Muslim Ban and repeatedly saying that immigrants are “bad people.” Currently, on Trump’s orders, ICE is rounding up Hispanic immigrants and holding them in private prisons for deportation. He’s stated that they are only rounding up drug dealers, rapists and murderers but that is a lie. Arrests have included a mother of three and a woman in the hospital with a brain tumor.
Incidentally, those private prisons gave Trump large contributions to his campaign. The GEO Group, one of the two major private prison companies, also gave him $250,000 for his inauguration party.
Even Trump’s administration is full of white supremacists, anti-immigrant fanatics and anti-LGBT pushers. Vice President Mike Pence is a rabid anti-LGBT bigot. Not only does he support any and all legislation against LGBT, he even tried to jail LGBT persons for simply applying for a marriage license. Tom Price, director of Health and Human Services, is another ardent ant-LGBT activist. In 2006, he voted for a constitutional amendment to ban gay marriage, against hate crime laws and against the Employment Non-Discrimination Act.
Steve Bannon, Trump’s senior counsel, is the former executive director of Breitbart. An anti-immigrant, anti-Muslim, anti-Semitic white supremacist website. Michael Flynn, former disgraced national security adviser, tweeted that fearing Muslims was rational and that the Islamic world has a “diseased component.”
Jeff Sessions, attorney general, was denied a judgeship in the 80’s because congress deemed him too racist. Stephen Miller, senior white house adviser, was a former Sessions adviser. Miller met Richard Spencer, the leader of the white supremacist “alt-right” movement, at Duke University. He wrote articles against multiculturalism and denied systemic racism. Steve Mnuchin, Treasury secretary, was accused during the mortgage crisis of foreclosing on minority owned houses and lending to white owned homeowners versus those of color.
Julie Kirchner, chief of staff of U.S. Customs and Border Protection, is the former executive director of FAIR, Federation of Americans for Immigration Control. Whereas Kris Kobach, Trump’s immigration adviser, is legal counsel to FAIR. FAIR was founded by white supremacist and eugenicist John Tanton. Tanton and FAIR members believe that whites are losing power and numbers due to too much immigration. They claim U.S. security and jobs as their only concern. But according to the SPLC, FAIR and its members are closely associated with Jared Taylor, white nationalist leader and founder of American Renaissance, and Kevin MacDonald, an anti-Semitic professor who writes the Occidental Quarterly racist rag.
According to the SPLC, there have been 900 plus hate crimes reported since the beginning of the Trump campaign. 40% of those crimes have “specifically involved Trump’s name or his election slogans.” 5
Every day we are hearing about bomb threats being called into synagogues, Hispanics being told by Trump supporters to go back to their countries and people of color being asked for their papers. Just this last week, Srinivas Kuchibhotta was murdered by a white American who yelled, “Go back to your country,” before taking Kuchibhotta's life and injuring two others. Locally, we are witnessing Trump supporters picketing outside our mosques, calling members of our Islamic community and their children terrorists. None of these incidents have been denounced by Trump.
Additionally, white supremacist websites, journals and radio shows are praising the Trump election as their second coming. KKK and Aryan groups have held parades supporting Donald Trump. They have openly stated that they support him because he supports their cause to make America an all white nation.
Trump always claims to be the “least racist” or the “least anti-Semitic” or to love “the blacks.” But you only have to look at his past and his current actions of race baiting, his white supremacist administration and his anti-immigrant executive orders to know the truth. And these hate groups know it too. Leaders set examples of acceptable behavior. Trump is telling white America is is acceptable to hate and justified to commit acts of violence against people of color by his rhetoric, his executive orders and by his silence when such acts are perpetrated in his name.
Trump is THE authority figure, has access to every kind of media we engage in and espouses racist propaganda on a daily basis. Those who are victims of these hate crimes should seek restitution not only from the perpetrators but from their leader via vicarious liability.
1 The Free Dictionary, "vicarious liability," retrieved Feb. 26, 2017, www.thefreedictionary .com.
2 Southern Poverty Law Center, "Tom Metzger," www.splc.org/fighting-hate, (accessed Feb. 25, 2017).
3 Romero, Victor C., "Restricting Hate Speech Against Private Figures: Lessons in Power-Based Censorship from Defamation Law," Columbia Human Rights Law Review, Vol. 33-1 (2001).
5 O’Conner, Lydia and Marans, David, “Here Are 16 Examples of Donald Trump Being Racist,” The Huffington Post, http://www.huffingtonpost.com/entry/president-donald-trump-racist-exampl... (Dec. 13, 2016)