Investigators say they still don’t know why Sean Urbanski, a 22-year-old University of Maryland student, walked up to 23-year-old Richard Collins III, a US Army lieutenant just days shy of college graduation, and fatally stabbed him at a campus bus stop this weekend. What they do say they know is that Collins, who was visiting a friend at UMD and did not appear to know Urbanski, was black, and that Urbanski belonged to a Facebook group called Alt-Reich: Nation, a haven of white supremacist content.
“Suffice to say that it’s despicable,” UMD police chief David Mitchell said, at a press conference, of the now deleted Alt-Reich: Nation group. “It shows extreme bias against women, Latinos, members of the Jewish faith, and especially African Americans.”
‘These are not questions the law has had to answer before.’ Neil Richards, Washington University School of Law
In addition to the local police department’s ongoing homicide investigation, the FBI is looking into whether Collins’ murder also amounts to a hate crime. The judges and jury of the internet have quickly reached a guilty verdict, but law enforcement is less sure. “We need something probably more than just a Facebook posting,” said Angela Alsobrooks, prosecutor for Prince George’s County, Maryland, during a press conference Monday.
Digital breadcrumbs have become key pieces of evidence for investigators in the age of social media, but they’ve also put a unique strain on the legal system, forcing courts to grapple with new questions about the relative significance of a Facebook post, a “Like,” a follow, a tweet. It’s natural for the public to want to level the harshest punishment on a person who could kill a stranger in cold blood, particularly when that killer lurked in the internet’s darkest corners and may have been motivated by racial hatred. But in Urbanski’s case, investigators, and eventually the courts, will have to carefully decide how much weight they can really put on a person’s online allegiances and whether mere membership in such a hateful online group constitutes evidence of intent to commit a hate crime.
“These are not questions the law has had to answer before,” says Neil Richards, a professor of First Amendment and privacy law at Washington University School of Law. “We don’t want to permit a system in which merely reading something or associating with other people can be used as strong evidence that you hold the views of the people you hang out with or the things you read.”
So far, investigators have revealed little about Urbanski’s relationship to the Alt-Reich: Nation page. John Erzen, a spokesperson for the Office of the State Attorney for Prince George’s County, declined to tell WIRED whether Urbanski had ever posted suspicious content in the group. “It’s one of many aspects of the investigation right now,” he said.
Meanwhile, Matthew Goodman, one of the founders of Alt-Reich: Nation, told The New York Times that he “never saw [Urbanski] comment or like anything” on the page. He also denied that the group had any ties to white supremacy, despite its collection of overtly racist memes.
Barring more evidence revealing some racial animus on Urbanski’s part, legal experts say Facebook group membership alone won’t be enough to bring a hate crime case against him. “From an investigator’s point of view, it’s a hot lead,” says Dan Rhynhart, chair of commercial litigation at Blank Rome, who has used social media evidence in his cases. “But without more, you’d have a hard time getting that into evidence.”
In fact, Rhynhart anticipates such evidence might lead to a pretrial hearing to determine whether it should be considered prejudicial, and therefore withheld from the trial altogether. “That could be the critical piece of evidence that everyone argues about,” Rhynhart says.
Joining an online group is a far more passive act than, say, posting a message on Facebook. The latter, says Eric Goldman, codirector of the High Tech Law Institute at Santa Clara University, is a form of communication no different from a written letter, and is therefore subject to the same standards of admissibility of evidence. “We ask questions like: Is it relevant? Is it subject to privacy restrictions? Is it credible? Can we authenticate the evidence?” Goldman says. “Many of those questions apply, with minimal change, to social media.”
But joining a Facebook group or, say, following white supremacist Richard Spencer on Twitter doesn’t map so easily to those standards. If anything, Goldman says, hanging a hate crime charge on membership in an online hate group would run up against First Amendment rights. “It would be chilling the right of association,” he says.
The Supreme Court has set some precedent regarding the tenuous balance between First Amendment freedoms and civil rights protections, Richards says. In R.A.V. v. City of St. Paul (1992), authorities charged a group of Minnesota teens who burned a cross on a black family’s lawn under a local ordinance that bans symbols that arouse “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The Supreme Court unanimously struck down the ordinance, arguing that the law banned only intolerant viewpoints. “You can’t punish only racist speech,” Richards says. “The First Amendment tries to bridge this uneasy tension between liberty and equality, but American law tends to err on the side of protecting liberty.”
In other words, unless investigators discover more evidence of Urbanski’s explicit racial bias—and they well may—it’s unlikely that the grieving online masses who have already convicted him of a hate crime in their minds will get the kind of justice they crave.
Still, while they may be unable to change the way the law works, they can still pressure companies like Facebook to more aggressively monitor hateful content on their platforms. “It raises the question of why Facebook allows groups like this to exist,” says Mary Anne Franks, who teaches criminal law at the University of Miami School of Law. “You can’t blame a Facebook group for the acts of one probably unhinged person, but what possible benefit does a group like this actually serve?”
The First Amendment may protect the freedom of assembly, but as a private company, Franks notes, “Facebook can do, frankly, whatever it wants.” Whether prosecutors ultimately charge Urbanski with a hate crime or not, it’s important that investigators have at least shined a light on the the existence of these groups, Franks says. “We should take it at least as seriously as we do ISIS groups and propaganda.”
Facebook, for its part, recently announced it would hire 3,000 new content moderators this year to review abusive content that Facebook users flag. But the fundamental challenge of policing the internet will remain: One Alt-Reich: Nation has fallen, but another Facebook group with the same name has already risen to take its place.