Local Nazi group doesn't want to turn over info in lawsuit against it because its members might be harassed or even prosecuted

A Suffolk Superior Court judge will have to decide whether to order leaders of a group called the Nationalist Social Club to divulge the names and activities of certain members to the state attorney general's office as part of a state suit or whether they have Fifth and First  Amendment rights to refuse to turn over anything.

The group's lawyers and the AG's office battled it out on the issue in a flurry of filings in court last week.

The state is seeking "discovery" information and documents as part of its 2023 suit against the group, to stop what the state says is its members' violations of the civil rights of people who aren't purebred Aryan dudes like them - Jews, Blacks, immigrants and LGBTQ residents - in the way its members show up at public events in skull masks and scream at people while waving  banners with Nazi sonnenrads on them.

Lawyers for group leaders Chris Hood and Liam McNeil say their clients have the Constitutional right under both the Fifth and First Amendments to refuse the state's demands for information and documents. 

They argue they have a Fifth Amendment right against self incrimination to refuse to answer, because the state's original complaint alleges what some might consider criminal activities:

The discovery sought in this matter inevitably seeks information that would clearly tend to incriminate the Defendants. There are abundant requests within these materials regarding conduct that plainly could subject the Defendants to criminal prosecution.

Included, they say, are state demands to identify NSC members who participated in the events identified in the state complaint and "describe any incident" in which an NSC member got into a fight or possessed a "dangerous weapon" while at a public protest, as well as state demands to turn over documents specifying NSC membership and leadership practices, tactics training and the use of dangerous weapons in connection with them leaving their homes to march in public.

Besides, they add, Suffolk County DA Kevin Hayden, "whose political animus towards the defendant's political beliefs is perhaps only exceeded by that of the Attorney General," tried prosecuting Hood for an incident outside and after a drag-queen story hour in Jamaica Plain and lost - he was found not guilty after video evidence showed Hood was defending himself from a group of punch-mad LGBTQ counter protesters.

The lawyers then add they brought up that incident not to sneer at Hayden, perish the thought, but to show that

As a practical matter the prosecutorial offices have and will pursue even the flimsiest of cases against these defendants and the threshold for incriminating material appears to be quite low. The court should uphold the Constitutional protections for these defendants and not allow the discovery in this civil matter to be deployed as a cat's paw for criminal investigations or prosecutions.

Also, they continue, no matter how repellent others may find them, their clients have First Amendment rights to assemble and speak just like everybody else.

While there is no mention in the complaint that the Defendants were engaged in protest activity during any of the events described within, a fair reading of the complaint makes clear that the conduct alleged against the Defendants can be construed as protected speech activities. Underlying these speech activities are what some may consider unpopular views - but such views are protected from government action.

Complying with the state demand to turn over documents and identities would infringe on the group's First Amendment freedom to assemble, "due to the reality that such disclosure will result in harassment and withdrawal from group membership."

A simple internet search of "Christopher Hood NSC" yields many caustic results that, should member identities or other organizational materials be made public, would certainly result in medial [sic] articles written about those individuals like the Southern Poverty Law Center's "Nationalist Social Club (NSC-131)" page. Such media coverage mentioning both of the individual Defendants by name - would certainly be repeated and disseminated widely should the disclosure of additional group members' identity be made public. Considering the conduct alleged and the media reporting associated with the Defendants, the compelled disclosure of group associations, organizational structure, and the identification of group members presents a very real likelihood of harassment, discouraging of new members, and the chilling of the Defendants' speech.

All of that is nonsense, the state argues, in asking for a Suffolk Superior judge to compel Hood and McNeil to answer their questions.

To start, the state argues, case law doesn't just let somebody simply refuse to answer all lawsuit discovery questions on a First Amendment basis - somebody who gets such a discovery demand needs to produce a "privilege log" of documents showing which one is supposedly barred from being handed over and why.

Here, Defendants have offered only conclusory, unsupported assertions of speculative harm. On the other side of the balance, the Commonwealth has a compelling interest in enforcing its civil rights laws - and protecting public peace, safety, and order against the type of violent, threatening, intimidating and unlawful conduct describe in the complaint. ... Morever, Defendants do not contest that the material the Commonwealth is seeking is highly relevant to its claims; nor can they contest that their blanket refusal to provide discovery will have a substantial bearing on the Commonwealth's ability to prepare its case for trial.

The state continues that the Fifth Amendment argument is equally wrong, in part because as with the First Amendment claim, the group leaders would have to detail how disclosing all the information sought "will subject them to a real and substantial risk of personal criminal prosecution," that "defendants' objections - which assert only that the production of unspecified material 'may tend' to incriminate them for unspecified crimes - fall well short of this standard."

Also, the state argues, the Fifth Amendment applies to "compelled testimonial incrimination," not to information in documents handed over in a civil suit. And people have no Fifth Amendment rights to protect information about other people:

Mr. Hood and Mr. McNeil are not refusing to provide discovery concerning their personal participation in criminal activity; they are refusing to provide any and all written discovery - including discovering concerning conduct that is not self-evidently criminal, and discovery concerning conduct that is not self-evidently criminal, and discovery concerning the activities of third parties. ... Mr. Hood and Mr. McNeil have no Fifth Amendment right to withhold discovery that is potentially incriminating to others, including other NSC members.

• Complete state motion to compel
• Response by NSC's lawyers
• State response to that response