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Overview of the Shank anonymous hate speech case
Lloyd Shank is a 73-year-old man who lives in Broward County. He has a long history of arrests for distributing racist literature at the Ft. Lauderdale-Hollywood International Airport. For years he has been sending officials rambling letters decrying Jews and the federal government. He served two years in federal prison for threatening President Ronald Reagan. He served time in a mental institution.
On August 23, 1999, Shank sent an unsigned letter to six of seven Broward County commissioners - all of whom are Jewish, except for one whose spouse is Jewish - in which he made anti-Semitic comments and allegations. In his letter, Shank attacked the Clinton administration and Christianity, and he claimed that Jews promote hatred and murder. He blamed major terrorist attacks on Jews, closing his letter: "You Jews and puppets murdered 10,000 innocent people in those bombings. Federal, state, local judges are Jewish gangsters and controlled by evil Jews. They are warmongers, terrorists, hate-filled liars and perverts."
Recognizing Shank as the likely author of the diatribe, detectives confronted Shank. He admitted writing the letter, explaining that he left it anonymous because he thought he would be prosecuted if he signed it. On September 8, 1999, Shank was arrested and charged with a third-degree felony under Fla. Statute 836.11, punishable by up to five years in prison and a $5,000 fine, for sending an anonymous publication "exposing persons to hatred, contempt or prejudicial ridicule."
The statute, which permits citizens to publish and distribute "hate" literature as long as they include their name and address, is the same statute used to arrest Killian Nine students in 1998 for publishing and distributing their anonymous controversial pamphlet First Amendment. Miami-Dade State Attorney Katherine Fernandez Rundle had promptly dismissed charges against the Killian Nine, calling the virtually never-used 1945 statute "unconstitutional and unenforceable."
On September 10, two days after Shank's arrest, the ACLU of Florida sent a letter to Broward State Attorney Michael J. Satz and Broward Sheriff Ken Jenne, calling the statute "plainly unconstitutional" and urging them to release Shank from custody. The State Attorney's office reduced the charge against Shank to a first-degree misdemeanor on September 17.
The decision to charge Shank has opened a debate on whether the 1945 Florida law is unconstitutional. In 1995, in McIntyre v. Ohio, 514 U.S. 334 (1995), the U.S. Supreme Court held that "a statute that prohibits the distribution of anonymous [political] literature is a 'law...abridging the freedom of speech' within the meaning of the First Amendment." Likewise, in each of the last three decades, the U.S. Supreme Court has consistently struck down as unconstitutional laws that seek to criminalize abusive, hateful or contemptuous speech in high-profile decisions such as R.A.V. v. City of St. Paul , 505 U.S. 377 (1992), Houston v. Hill, 482 U.S. 451 (1987), and Lewis v. City of New Orleans , 415 U.S. 130 (1974).
However, the Broward State Attorney's Office argued in a written statement that they will proceed with the case as it has "compelling interest in the anonymous distribution of hate literature" because such literature "can incite others to commit inappropriate criminal acts." The State Attorney's Office also stated that, because the McIntyre case dealt with an election law that prohibited unsigned campaign literature, Shank's case is distinguishable.
A team of ACLU lawyers will represent Shank in the state's criminal proceedings.
