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Dees is trying to prove any of a variety of related kinds of liability: that WAR and the Metzgers "through their agents" encouraged the killing; that the Metzgers and the Oregon skinheads formed a "civil conspiracy" leading to murder; that Seraw's death was caused by the Metzgers' "reckless" and "negligent" selection of a violence-prone agent to organize the Portland group. "This is a plain old wrongful-death suit in a state court," explained co-counsel Rosenthal. "It is a common-law course of action that doesn't bother with fancy federal or state civil rights laws."
The Oregon chapter of the American Civil Liberties Union, for one, is concerned about aspects of the case. In an amicus curiae brief, the chapter urged that charges involving "negligent" and "reckless" speech be dropped, reasoning that a finding for the plaintiff on those grounds could have a chilling effect on First Amendment freedoms. A.C.L.U. lawyer Michael H. Simon adds, however, that adequate proof that Tom Metzger intended to cause serious harm by sending agents to Oregon would void his concern.
Acting as his own lawyer, WAR leader Metzger is casting himself as a beleaguered populist, but not an instigator of violence. "I'm a white racial separatist," Tom Metzger says, "and I can sit down with any person, white, black or Oriental, and talk about it." Metzger's easygoing cracker-barrel manner in Portland is belied by the angry messages he tapes for WAR telephone lines. There he calls nonwhites "mud people" and "assorted scum"; attorney Dees is "Morris the pervert"; trial judge Ancer L. Haggerty, who is black, is an "Uncle Tom"; and the trial, says Metzger, is a "legal lynching."
Dees will attempt to introduce in evidence other Metzger tapes, including one in which the senior Metzger observes that those who killed Seraw performed a "civic duty." If Dees convinces the jury there is a vicarious liability connection and wins a heavy award, Metzger will probably lose his family's home and the WAR offices. Future earnings could also be attached, as they were in the Klan case. The Klan, says Dees, "hardly exists now."