There Is A Real Risk To Criminalizing Domestic Terrorism

(Full disclosure: In 2002 I was paid for my participation – preparing a scholarly paper with Ron Akers who supervised the criminological side of my doctorate and dissertation – in the National Institute of Justice’s, which is the research arm of the Department of Justice, special conference on Violence and Terrorism. The proceedings of that conference were published in this edited volume. The definition and empirical theoretical explanation of terrorism that we presented, which were directly from my doctoral dissertation, were voted by the other participants in the conference as the best definition and empirical theoretical explanation of terrorism presented at the conference. That definition is closely mirrored in the definition used in the Federal statute that defines both international and domestic terrorism. I have had no funding from the NIJ/DOJ since 2002.)

After the white supremacist terrorist attack in El Paso on Saturday, which followed on one in Gilroy, CA the week before, and was then followed by a mass shooting in Dayton, OH that night and which is still under investigation for motive, there have been calls to revamp the US criminal code to criminalize domestic terrorism. The FBI Agents Association has now formally called on Congress to do this.

Many others have also called for this change because, as we’ve discussed here before, while domestic terrorism is defined in the Federal code, there is no criminalization of the behavior as there is for international terrorism. Many are arguing, and, perhaps, not incorrectly so, that it is time to bring the Federal code up to date and criminalize domestic terrorism so we have better tools to fight the surge in domestic white supremacist terrorism that has been spiking across the US over the past three years. And that, by doing so, Congress would be sending a message and ultimately be creating a deterrent. As a professionally educated and trained criminologist, I am highly skeptical of the deterrent power of law, especially Federal law, on most people’s behavior.

That said, I have a different concern here. Specifically that a Federal criminalization of domestic terrorism will actually be used and directed against those who are ethnically, racially, and religiously non-conforming to the white, Christian majority that still exists in the US. The same goes for LGBTQ Americans, as well as members of immigrant communities who have not completed or have chosen not to become naturalized citizens. The US’s history of applying law, is the history of law being directed by those with more cultural (ethnic, racial, religious, political/ideological, socio-economic, gender, sexuality) homogeneity to the majority against those with less. And I think it is highly likely that if domestic terrorism is criminalized at this moment in America, where the questions of who are and can be American and just what Americanness is are actually being fought over, including in the violent domestic terrorist attacks we saw in El Paso and Gilroy and Paloma and Pittsburgh and Charleston and other places in the US, then an actual criminalization of domestic terrorism will not be directed at white supremacists. Rather, it would be directed against Black Lives Matter; anti-Trump protesters in general, as well as the more specific antifa, which is often conflated with the Black Bloc anarchists; RAICES, the Jewish Never Again Action movement, and other groups protesting the President’s immigration policies and practices; as well as a variety of other groups that regularly and routinely engage in peaceful assembly and protest and digital and social media activists protesting Federal, state, and local government leaders and action.

And this is before we even get to what the states will do to mirror a Federal criminalization of domestic terrorism. As it is, every state created some variant or version of homeland security, anti-extremism, and/or terrorism statutes in the wake of 9-11. Some were well thought out. Some not so much. Several years ago I was briefly asked to consult on a defense appeal in New Jersey* for someone who, when 15, got drunk and spray painted some swastikas and anti-Semitic graffiti on a synagogue. Unfortunately for this guy, when New Jersey decided to create a terrorism statute in the wake of 9-11, they just built out their hate crime statute. So stupid, drunken teenage behavior, no matter how much it is offensive, got this guy a long prison sentence as a terrorist under New Jersey state law instead of just a hate crime prosecution.

Last week Ken White, the former Federal prosecutor turned defense attorney who tweets as Popehat, and Above the Law’s Elie Mystal had a very interesting and thoughtful discussion that, while tangential to criminalizing domestic terrorism, provides a loudly sounding klaxon of warning against doing so. Their conversation was about creating a 1st Amendment carve out to criminalize hate speech. While I highly recommend that you click across and read the whole thing, for the purposes of criminalizing domestic terrorism, this is the relevant section (emphasis mine):

Elie: JUSTICE MYSTAL, CONCURRING. The majority has well explained the law as it is, and explained well what the law is not. But I now write separately to argue not what the law is, but what it should be…

When applied to people of color, the incitement principle does not take into account the lived experience of colored people. It does not take into account how lynchings happen, how assassinations happen, and how run-of-the-mill “I’m just going to beat you half to death” hate crimes happen.

The mob is encouraged, riled up, and given a black or brown scapegoat for their problems. Eventually, some members of the mob are going to *act.* The people riling up the mob know that there is a chance one of their idiot flock will act. We have to be able to bring legal consequences to these people, *before* there are additional dead or beaten people of color in the streets. Prosecuting merely the act after the fact might make white people feel better, but it does nothing for the victims who are either dead, bloodied, or live in fear of being dead and bloodied.

To put that in the form of a question, what *good* do incitement standards, as we currently have them, do for the people most likely to be the victims of the kind of racial violence black people have known in this country for 400 years?

White: It’s a perfectly fair question. The legal system disfavors the powerless — particularly racial and religious minorities. Rules devised by the system tend to do the same. The way the system works tends to do the same.

But — here’s the key — exceptions to constitutional rights absolutely follow the pattern. Put another way, any exception to free speech will be disproportionately applied against the powerless, and especially people of color.

The history of free speech law bears this out. Very little of it is about trying to put limits on racists. Most of it is about trying to put limits on the powerless — about the system finding excuses to jail poor people, people of color, unpopular people.

So, consider the cases involving a broad reading of incitement, the ones that might support prosecuting someone for a billboard like this. Consider Schenck v. U.S., in which Justice Holmes gave us the fatuous “fire in a crowded theater” trope. Schenck’s about prosecuting a socialist for distributing handbills suggesting that poor people resist the WWI draft. THAT’S what got the Supreme Court to articulate a very broad and unprincipled incitement standard, the type you’d need to reach a billboard like this.

Elie: Right. It’s used to put people like me in jail for saying “we need to take a sledgehammer to the Wall” if one idiot sledgehammers the Wall and catches a border security guard in the face… “by accident.”

White: Exactly. Or consider “fighting words,” a doctrine almost never applied by courts but often raised by people wanting broader bans on speech like this.

Chaplinksy — the poor bastard whose case led to the “fighting words” doctrine — was a Jehova’s Witness, a sect that was revoltingly prosecuted in the 30s and 40s. It’s an ugly bit of history most people don’t know about. Chaplinksy was streetcorner preaching and a crowd assembled and was threatening him, and a dude tried to RUN HIM THROUGH WITH A FLAGPOLE WITH THE AMERICAN FLAG. But the cops were wanted HIM to stop preaching, so he swore at a COP, and they arrested HIM, and the Supreme Court says that HE’S the one uttering the fighting words.

That’s the way these cases go. True threats doctrine? Developed on the backs of Vietnam War protesters.

Elie: I had forgotten where we get fighting words from.

But, if I may respond as if you were Joe Biden… THAT WAS THEN, OLD MAN. The argument that we can’t stop racists from inciting violence against us because the racists will use those laws against us is, at best, unsatisfying.

White: Elie, it may be unsatisfying, but sorry, it’s true. Consider:

Right now, Ted Cruz wants to have ANTIFA investigated and prosecuted under RICO. Now, that’s stupid for a number of reasons. But it illustrates that doctrines allowing broad attacks on speech are NOT going to be used against dudebros who run racist gun stores.

Who is going to get hit with broad definitions of incitement? It’s not gun store dudes. It’s Black Lives Matter marchers.

Consider all the efforts to pass new laws criminalizing unlawful assembly a couple of years ago after some particularly well-publicized Black Lives Matter marches.

Consider New York, right now, wanting to make it a FELONY to splash a cop. Now, that’s not speech, but that’s how the system works.

This isn’t speculation. It’s history. There is no rational reason to think that broad free speech exceptions will be used for the benefit of the powerless.

You are wickedly well-educated on the law, Elie. So remind our readers: in the first hate speech/hate crimes case to reach the Supreme Court, who was the aggressor and who was the victim?

Elie: [Furiously Googling] It’s the Mississippi Burning case, yeah?

White: It’s Wisconsin v. Mitchell, where the defendant was black and the victim was white. It was a case where a bunch of kids got riled up after watching “Mississippi Burning” and attacked a white guy. It is, by no stretch of the imagination a coincidence that the first hate crimes case involves black-on-white crime.

Elie: I mean, the reality that any speech law made to protect black people will be used against black people is one of the things that makes me hate this “land of the free” crap. But it also pushes me to my actually least favorite position. … Let’s make hate speech unconstitutional. Or, to put that more legally, let’s make hate speech unprotected speech.

Yes, that has the same problem that “PoC ‘hate’ speech” will be more prohibited than white hate speech, but it ALSO means that at least some white hate speech can be controlled. It’s a murder-suicide pact, but it will stop some white people from encouraging violence.

White: And let’s not confuse it with other popular proposed amendments to the First Amendment, like the deathless “no flag burning” amendment, or the right to pray in schools amendment.

So: I like specifics about law over generalities. So, Elie, how would you propose to word an anti-hate-speech amendment?

Elie: See, that’s the problem right there. Wording it. I’d go with something like this:

“Speech intended to threaten, harm, or harass other Americans based on the race, gender, religion, country of origin, sexual orientation, gender at birth or [insert whatever ism I’m forgetting because I’m not woke enough] shall not be considered protected speech. Congress shall have the power to enforce this provision.”

And yes, I’ve just written a Constitutional Amendment that still somehow doesn’t take down the fucking billboard and I hate myself.

But I am getting at “harassment” which means I can basically shut down white supremacist Twitter. To say nothing of the fact that my Amendment has a chilling effect on Donald J. Trump.

White: Okay. Not to be the guy who asks what does that mean — but what does that mean?

Elie: Threaten = trying to nudge the true threat analysis away from “imminent” and towards “reasonable. Harm = trying acknowledge that there are speech harms that are more than mere physical danger. Harass = “get out of my mentions, you asshole.” Threaten is enhanced, harm is new, harass is the one that will ruin free speech.

White: Since I’m having trouble analyzing this, can I ask how it would apply to an example? [we got through a couple of examples until]

OK, the Amy Wax example. Wax says, falsely, that no black students graduated with honors, right? So, reverse it, A prof who says that white kids at her school are privileged, racist, and indifferent to injustice, and ought to be ashamed. Protected or not?

Elie: Well, this gets to an important issue: TRUTH is always protected. At some point we need to stop white supremacists from spreading their trash. Wax was surfacing a lie. Not an opinion. Not research. Just lies. I’m just floored by how we can continue living in a society where freaking lying is protected speech, when we know how dangerous lies are to the very structure of our polity.

White: Do you want American courts adjudicating whether whites are racist? Would you like, say, a Trump appointee in the District of Mississippi ruling on that one?

Elie: Ugh. NO. No I do not want a Trump judge in Mississippi ruling on whether I have a right to a Slurpee. Much less on whether I can say what I want.

For those playing along at home, this is where Ken always gets me. I’M FREAKING RIGHT… but Ken knows this guy named Donald Trump and his mere EXISTENCE means that we can’t have nice things.

White: Okay. Let’s say public statements by professors, activists, political figures can be the basis for prosecution if they are factually false. Who is prosecuted first in America: Steve King, or AOC?

As White correctly points out, and Mystal recognizes in the legal and lived history that he and White are describing, is that law is all too often created by the powerful in response to something done by or to the powerless and is then directed against those with less power by those with more. And, as the sociology of law research tells us, this direction flows from the culturally (ethnically, racially, religiously, politically, socio-economically, sexuality, and gendered) more homogenous against those who are less culturally homogenous. And this is what I think will happen if domestic terrorism is criminalized. It won’t do anything to deter the white supremacist or neo-NAZI terrorists we’re concerned with, nor will it really change their potential prosecutions, which will focus on murder and assault and battery as defined either Federally or in the state jurisdictions they are tried in. What it will do, however, is provide another tool for those already in power who play footsie with the white supremacists, neo-NAZIs, neo-fascists, neo-nationalists, and/or nationalist-conservatives for political reasons to direct law against those appalled by the behavior of the members of these groups and the politicians that play wink-wink, nudge-nudge with them. And that means that Black Lives Matter activists, anti-Trump activists at the Federal level, anti-insert state governor’s name here activists at the state level, those who might protest specific Federal or state legislators, RAICES, the Never Again Movement, and others protesting against the President’s immigration policies and actions will be even more at risk. We need to be clear eyed that criminalizing domestic terrorism comes with a price. That price is that the criminalization of domestic terrorism will make members of all these protest groups, many directly tied to ethnic, racial, and/or religious minorities, will no longer just be potential targets of white supremacist terrorism, but also of the domestic terrorism law put in to place to deter and counter it.

Be careful what you wish for, you might just get it. Good and hard.

Open thread!

* The appeal didn’t go forward as the new defense attorney brought in to handle the appeal, and who I was recommended to as someone with documented credentials as both a one time scholar of terrorism (pre 2007) and then counter-insurgency and counter-terrorism practitioner (post 2007), was unable to actually challenge the statute on appeal for technical reasons resulting from the original trial. So I didn’t do much of anything but read a summary of the problem and say, I’m happy to consult, here’s my rates, which turned into $0 billable hours.

115 replies
  1. 1
    satby says:

    Adam, earlier this morning Major ^4 linked to this proposal by Buttigieg on fighting white supremacist domestic terrorists. Seems sound to me, but I am not the expert you are. Have you had a chance to read this yet and if so, thoughts? I assume the rest of the candidates will propose similar plans.

  2. 2
    Kay says:

    Devin Dwyer
    “There’s a gaping wound that’s still open here, and a lot of us feel that
    presence in this community tomorrow is just going to be throwing salt in that open wound,” #ElPaso County Commissioner David Stout

    It’s really extraordinary. There have been unpopular presidents, and I know conservatives resented Obama’s speeches and events after tragedies because they said they did and they nitpicked everything he said- but I can’t recall one where people thought the president’s presence would make a tragedy worse.

  3. 3
    jl says:

    ” but also of the domestic terrorism law put in to place to deter and counter it. ”

    One thing I don’t understand, and didn’t see in the post, is that there already are enough broad laws that make all sorts of protest and other activities that would not seem to be terrorism chargeable as terrorism. This is both at state and federal levels. So, seems to me the horse is already out of the barn on this issue. And inappropriate application of these laws seem to fall mainly on groups out of favor with established political power and its big money funders.

    The issue is who is writing these laws and for what purpose. Not sure those who have been unfairly charged with anti-terrorism crimes, or sympathetic watchdogs, would have much say in revising them. But if they did, some new legislation to clean up current and recent abuses, and could clarify what is foreign, and domestic terrorism.

  4. 4
    RepubAnon says:

    Republicans are already calling anyone who objects to their policies “traitors”. Imagine Brett Kavanaugh’s 5:4 decision holding that Planned Parenthood a terrorist organization, so anyone donating to them or mentioning them favorably is guilty of “material support of terrorism.”

    Any anti-domestic terrorism laws won’t be used against the KKK, they’ll be used to silence the Left. Remember the folks enforcing these laws will be right-wingers.

  5. 5

    Thanks for this. I’m similarly ‘conservative’ on such topics. As we’ve seen many many times, bad people will come into power and try to use every available tool to oppress minorities.

    “Would you want Donald Trump deciding…”, as Popehat notes above, is not a weak argument against giving the executive branch more power.

  6. 6
    boatboy_srq says:

    In other words, as an example, the Stonewall Riot – and therefore every LGBT Pride event that followed it – could be categorized and prosecuted as a domestic terror event.

    That is pretty frightening.

  7. 7
    JaySinWA says:

    Unfortunately, I believe Popehat’s assessment is correct. We have Ted Cruz calling Antifa a terrorist organization, which appears to be false in both words. BLM is targeted, countless other protest proclaimed “terrorist” by establishment spokesmen, while whining about militias and alt-right groups getting unfairly tagged. The establishment favors the established and projects its faults onto those outside it.

  8. 8
    Adam L Silverman says:

    @satby: Most of it is fine. Universal background checks, which I support, wouldn’t have made a difference for El Paso, Gilroy, or most of the other mass shootings that are domestic terrorism attacks as the shooters bought their guns through licensed gun dealers and therefore had to pass the Federal background check via the NICS database. I have some concerns with Red Flag laws, but that’s largely a wording issue. If you’re not careful, like the terrorism watchlist, people wind up Red Flagged not because they’ve done anything wrong, bad, etc, but because someone else is settling a score.

  9. 9
    A Ghost To Most says:

    Doesn’t the foreign terrorist statute work off a list of defined terrorist groups?

  10. 10
    Adam L Silverman says:

    @boatboy_srq: Yep, this is exactly what I mean.

  11. 11
    Katharsis says:

    I’m just wondering is there a way to get the law to get the court to recognize a marginalized party. Like what would that language look like? Then you might have a marginalized party exception to laws like these. Getting the courts to have a framework for power dynamics might be more important than increased criminalization of terrorism.

  12. 12
    Adam L Silverman says:

    @jl: They’re already used. This would just supercharge the problem.

  13. 13
    Litlebritdifrnt says:

    There was a great tweet yesterday which basically said (paraphrasing):
    There are video games in every country in the world but no mass shootings.
    There are mental health problems in every country in the world but no mass shootings.
    There is racism in every country in the world but no mass shootings.

    The only difference is the guns!

  14. 14
    Adam L Silverman says:

    @A Ghost To Most: We have a list, but you don’t have to be a member of one to charged under the statute.

  15. 15
    Adam L Silverman says:

    @Litlebritdifrnt: Actually we also have really crappy beer.

  16. 16
    boatboy_srq says:

    @Adam L Silverman: Bad enough that the FundiEvangelical sphere call LGBTs all sorts of names. Imagine what would happen if a Pride Parade were stopped by LEOs and participants arrested instead of escorted. Sounds very very Stalinist/Putinesque.

  17. 17
    trollhattan says:

    Good news, the Dayton murderer may have been merely misogynistic, mentally ill and a crankhead, and not necessarily a racist neonazi. Perhaps a copycat as well?

  18. 18
    Jay says:

    Portland Police have repeatedly waged brutal attacks against PDX activists & residents in order to facilitate the rallies, marches, & organizing practices of violent white nationalists who travel here explicitly to assault people.— Always Antifascist (@RoseCityAntifa) August 6, 2019

    FBI officials are reportedly afraid to pursue white supremacist terrorism because they don’t want to make Trump mad by going after his voter base. 3/— Caroline Orr (@RVAwonk) August 5, 2019

    The domestic terrorism enablers are inside the House, the courts and the cops.

    There is no “fix” for this.

  19. 19
    boatboy_srq says:

    @Adam L Silverman: I wonder sometimes if the crappy beer doesn’t contribute to the increased shootings.

  20. 20
    Adam L Silverman says:

    @boatboy_srq: You could probably get grand funding for that.

  21. 21
    JaySinWA says:

    @Katharsis: “marginalized party”? I can hear the bleats of racists and Nazis now about how no one tolerates them. We want some groups and ideals marginalized for the good and safety of humanity.

  22. 22
    Jay says:


    He was big into agrigarian socialism, which is a cornerstone of current Nazi ideology.

  23. 23
    Adam L Silverman says:

    @Jay: It was a cornerstone of classic NAZI ideology too. Most people don’t know or remember that the precursors of the German Green Party grew out of the NAZI bund community.

  24. 24
    The Other Bob says:

    I admit I have found it odd that a person can be prosecuted for threatening the life of the President, but if one were to threaten the life of a whole race of people by advocating genocide, that is protected speech.

    Nazism is banned in some countries. Are people really less free there? It seems that certain specific actions and speech should not be protected. If exempted from the 1st Amendment, it should be specific, not general.

    I write this to hear what other people think.

  25. 25
    JaySinWA says:

    @Adam L Silverman: Olympia brewers claimed “It’s the water”.

  26. 26
    lamh36 says:

    Make sure to follow along to Beto’s tweet thread guys:

    6m6 minutes ago
    22 in El Paso this week. Nearly 40,000 in our country each year. The numbers are heartbreaking, but they don’t capture the tragedy of each & every one of those deaths. That’s why I am sharing the stories of all those who lost their lives in El Paso this weekend.

  27. 27
    Jay says:

    @Adam L Silverman:

    Yeah, but see, it’s says socialism, so it’s left, right?

  28. 28
    jl says:

    @Adam L Silverman: ” They’re already used. This would just supercharge the problem. ”

    What is a good solution to the growing use of anti-terrorism laws to violate people’s civil rights, then? You and majority of commenters say that trying to write better laws is too dangerous.
    What are other remedies? As I and other commenters have pointed out, various minority groups and protesters, sometimes peaceful protesters engaging in civil disobedience, are already inappropriately charged with terrorist crimes.

  29. 29


    There are video games in every country in the world but no mass shootings.

    If video games caused violence you might expect to see some in, I don’t know, Japan or South Korea.

  30. 30
    Jay says:

    @The Other Bob:

    The issue in America is that the people, corporations, special interests that would write these bans, and the Courts, prosecutors and police, have no interest in criminalizing violent white supremacy, in any way, shape or form.

  31. 31

    @Kay: Tomorrow should be interesting. The mayor of Dayton says she’s going to call Trump on his racism.

  32. 32
    Jay says:

    "I don’t think there’s any faith by the FBI right now that the Justice Department is an independent law enforcement organization,” he said.— Caroline Orr (@RVAwonk) August 5, 2019

  33. 33
    The Moar You Know says:

    Deterrence does not work. Period. Look at the death penalty. Every time it has been re-introduced, murder rates go up.

    Also, Adam, I share your concerns about who these laws will be used against. It won’t be guys like Cesar Sayoc.

  34. 34
    trollhattan says:

    At least they had an ethos.

  35. 35
    Jay says:

    USA: It's a mental health issue.

    WORLD: We have those. We don't have mass shootings.

    USA: Then it's a video game issue.

    WORLD: We have those. We don't have mass shootings.

    USA: It's very complex.

    WORLD: No, it's gun laws.

    USA: Prayer in school?

    WORLD: God, you're stupid.— Mrs. Betty Bowers (@BettyBowers) August 4, 2019

  36. 36
    boatboy_srq says:

    @Adam L Silverman: How so? HHS grants for quality brews as violence deterrents, or National Russian Association rubles for inciting inceeased gun use?

  37. 37
    debit says:

    @Cheryl Rofer: Woah. To his face? In public? He will go apeshit.

  38. 38
  39. 39
    JaySinWA says:

    @debit: I would expect him to cancel if he is made aware of the intention.

  40. 40
    Adam L Silverman says:

    @jl: I don’t have a good answer. I’m not sure anyone does. We have a system that is designed to direct law, no matter what the law is, from the more/most powerful against the less/least powerful. That’s what has to be changed.

  41. 41
    Jay says:

    @Adam L Silverman:

    The entire system would have to be changed.

  42. 42
    Adam L Silverman says:

    @boatboy_srq: I’d see what either the NIJ or the National Science Foundation is willing to fund.

  43. 43
    Adam L Silverman says:

    @Jay: Yep.

  44. 44
    rikyrah says:

    He chose his spot for killing. That’s not his neighborhood

  45. 45
    🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷 says:

    I can just imagine the demented fascist ordering his Secret Service detail to execute her while Pence goes on national TV claiming Trump didn’t really mean it or some other argle bargle bullshit

  46. 46
    Litlebritdifrnt says:

    @Adam L Silverman: Well that is a given. My American husband now hates US beer and can’t wait for his return to the US and his pint of Carlsberg after going to the gym.

  47. 47
    🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷 says:

    @Adam L Silverman:

    I don’t have a good answer. I’m not sure anyone does. We have a system that is designed to direct law, no matter what the law is, from the more/most powerful against the less/least powerful. That’s what has to be changed.

    Massive civil disobedience? There has to be a point where society will stop functioning due to all of this corrupt bullshit and people get so fed up with it that the government becomes overwhelmed

  48. 48

    @Adam L Silverman: This is an important insight.

    We have a system that is designed to direct law, no matter what the law is, from the more/most powerful against the less/least powerful. That’s what has to be changed.

    I’d add that law is often too inflexible to be useful. We need alternative means of preventing something like this. Community involvement is important. I was just reading this thread – it’s long, so I’ll just include the first two tweets – and thinking that changing the law is not the answer.

    Charge the perpetrators with the maximum possible charges of murder. This is up to the prosecutors.

    It would seem to me that the conspiracy laws could be applied to 8chan and the like, when they get into things like Pizzagate and some a**hole decides to take action on them.

    One place where laws would make a difference is around gun ownership. There’s lots to be done there.

    Within communities, we need some way to deal with people who obviously are heading toward trouble for themselves and others. The Dayton shooter seems to have given a great many signs (keeping a murder list and a rape list while in high school and much else) that something was badly wrong. He never should have been allowed to have guns.

    Except for guns, I think we have to look to other institutions than the law. I agree that most of what is being proposed now is likely to do more harm than good.

  49. 49
    O. Felix Culpae says:

    @rikyrah: Yup. The powers-that-be are always invested in lone wolf, mental illness theories for white male killers. The authorities (including the press) don’t want to connect the dots to racism. They work really hard at not seeing, and therefore they do not see. Too close to home perhaps.

  50. 50
    Fred Fnord says:

    I do not believe that there literally is a tool that will add power to what they are already doing. They have already infiltrated BLM and are spying on them illegally, and will not hesitate to bring charges and/or just kill a bunch of them if there is the slightest hint that any of them plan to do anything bad, or can be persuaded by the police to do something bad. I do not believe that a new set of charges will dramatically alter the landscape.

    And Ken, being a libertarian in every sense of the word, believes that fewer laws is ALWAYS better. I have never seen him advocating for creating a law, and I have often seen him advocating for getting rid of laws. I do not know what he is for, but I know very well what he is against.

  51. 51
  52. 52
    O. Felix Culpa says:

    Halp! In moderation because of an errant keystroke. Thanks.

  53. 53
    Adam L Silverman says:

    @🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷: Societies will differentially organize to survive. The issues isn’t whether society will continue to function, the question is whether the government will. And the current President and his administration have three primary goals: 1) enriching and protecting the President, 2) preserving white supremacy, and 3) dismantling the Federal government, or mismanaging it, to the point where it no longer functions.

  54. 54

  55. 55
    Litlebritdifrnt says:

    @Litlebritdifrnt: Sorry meant return to the UK.

  56. 56
    lamh36 says:

    Fuq this bitch. there I said…fuq her and her racist, lying azz family. I really do try not to have hate in my heart for folks…but forget that…I hate this family…including the ones who married into it.

    The first daughter is suddenly filled with concern about violence in Chicago, which she never mentioned until her dad was blamed for a mass shooting in El Paso.

    I saw that witch’s tweets…like she give two fuq’n shits about Chicago.

  57. 57
    Adam L Silverman says:

    @Cheryl Rofer: All of our empirical evidence of terrorism prosecutions, going back to the late 80s, clearly indicates that the only time you get convictions in a terrorism case, regardless of what the actual crime being charged is (murder, hate crime, assault, battery, armed robbery, etc) is if the accused are not white and not Christians. Whenever conspiracy charges are brought against white supremacists, the juries never convict.

  58. 58
    🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷 says:

    @Cheryl Rofer:

    a group of white men said they thought the killing went too far but they agreed with some of the stuff the shooter stood for, like making sure whites aren’t wiped out and Hispanics take over.

    JFC, that’s like saying the Holocaust was wrong but that Hitler “had some good ideas and was just trying to help his country (which wasn’t actually his in the first place)”

    I definitely think that Red Flag laws can help prevent some of this mass shootings

  59. 59
    MomSense says:


    I replied “you’re a fucking monster” to her tweet. I don’t even care if I go to twitter jail.

  60. 60
    Jay says:

    @Cheryl Rofer:

    Deplatforming is highly effective:

    Now, here's how to participate in the #untwitter8chan boycott!It's super-easy.All you have to do is follow this link, log in with your Twitter account, and click "Block all and subscribe."— Gwen Snyder is uncivil (@gwensnyderPHL) August 6, 2019

  61. 61
    Adam L Silverman says:

    @O. Felix Culpa: You know what you did!

  62. 62
    lamh36 says:

    @debit: I doubt to his face

  63. 63
    debbie says:


    Is it too late to hope there will be signs welcoming him to Toledo?

  64. 64

    @Jay: Yes! I saw something about that on Twitter. An academic study showed it helped to shut down the hate speech.

    The limit there is that leaving it up to the various corporate bodies may be less desirable than governmental action. Look at @Jack’s random rules.

  65. 65
    Adam L Silverman says:

    @🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷: That was Candace Owens take on Hitler.

  66. 66
    debbie says:

    @Major Major Major Major:

    Definitely no on the executive branch, but what about a domestic terrorism court, like there is a FISA court. Let a judge decide whether it’s legitimate based on whatever is finalized as the definition.

  67. 67
    lamh36 says:

    7m7 minutes ago
    More Kyle Griffin Retweeted Rep. Veronica Escobar
    Rep. Veronica Escobar, who represents that El Paso area, says that she declined an invitation from the White House to join Trump on his El Paso visit because he wouldn’t take her call before the visit.

  68. 68
    J R in WV says:

    Holy cow, Adam!!

    I read that pretty closely, but quickly. Very depressing. Very depressing. Now I’m going to read the comments…

  69. 69
    Adam L Silverman says:

    @J R in WV: Stay calm and never read the comments!

  70. 70
    Jay says:

    @Cheryl Rofer:

    The target is not twitter, the target is twitter advertisers.

    Hitting them in the pocket over and over again is how deplatforming works.

    Doxxing Nazis is also highly effective.

  71. 71
    Jay says:

    The Triumph of Their Will
    White nationalists are building political power from within the Republican Party.
    by Melissa Ryan
    August 1, 2019

  72. 72
    Jay says:


    The FISA Court is a rubber stamp.
    Wen Ho Lee?

  73. 73
    🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷 says:

    Good for you. Ivanka is terrible and should be ashamed. They’re all horrible, even Tiffany, who spoke at the 2016 GOP nominating convention and recently went on the Trump clan’s expedition to the UK.

  74. 74
    lamh36 says:

    Congresswoman Escobar is a REAL one…check out the entire thread.

    Chump and company tried to get her to come for his photo op…but she said..nah…you need to call me first so I can tell you what my constituents had to say.

    Now ya’ll know Cheeto is too much of a yellow bellied coward, so they told her he was “too busy”

    So Rep Escobar said…keep yo damn photo-op Chump and find some other token to use.

    The White House invited me to join @realDonaldTrump during his visit to El Paso. My response was clear. I requested a phone call with him today in order to share what I have now heard from many constituents, including some who are victims of Saturday’s attack…

    I was told that @realDonaldTrump is “too busy” to have that conversation.

    I declined the invitation because I refuse to be an accessory to his visit. I refuse to join without a dialogue about the pain his racist and hateful words & actions have caused our community and country

  75. 75
    trollhattan says:

    @Adam L Silverman:
    And remember to hydrate!

  76. 76
    Adam L Silverman says:

    @trollhattan: Always!

  77. 77
    Jay says:

    The 8chan owner has every incentive to lie just now about what’s been going on with his little nest of terrorists, and imo there’s no reason for the news media to give him an uncritical platform from which to make unsubstantiated statements.— southpaw (@nycsouthpaw) August 6, 2019

  78. 78
    🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷 says:

    @Adam L Silverman:

    Societies will differentially organize to survive. The issues isn’t whether society will continue to function, the question is whether the government will. And the current President and his administration have three primary goals: 1) enriching and protecting the President, 2) preserving white supremacy, and 3) dismantling the Federal government, or mismanaging it, to the point where it no longer functions.

    Do they seriously think the rest of us are just going to stand idly by forever and let them do this? There’s always a breaking point. Nothing lasts forever and their actions are making it more likely enough people are going to violently resist them at some point, IOW overreach

  79. 79
    Jay says:

    GOP state Sen. John McCollister of Nebraska tweeted that the Republican party was complicit in “obvious racist and immoral activity.”In response, the Nebraska Republican Party issued a statement telling McCollister to leave.— MSNBC (@MSNBC) August 6, 2019

  80. 80
    JDM says:

    And if we just don’t call rightwing terrorism “terrorism”, the rightwing will never take police action against leftwingers. Bullshit.

  81. 81
    VeniceRiley says:

    @Jay: “Betty Bowers” and her husband are personal friends. I adore them. So funny!

  82. 82
    Jay says:

    Despite broad efforts to crack down on misinformation ahead of the 2020 election, the primary season so far has been chock full of deceptive messages and misleading information.

    Why it matters: More sophisticated tactics that have emerged since 2016 threaten to derail the democratic process by further polluting online debate. And the seemingly unending influx of fakery could plant enough suspicion and cynicism to throw an otherwise legitimate election into question.

  83. 83
    Jay says:

    #BREAKING: The FBI has launched a domestic terrorism investigation into the Gilroy, CA, mass shooting that killed three people and injured 13 others.— Caroline Orr (@RVAwonk) August 6, 2019

    The tools are already there, what’s lacking is the will.

  84. 84
    Jay says:

    Jay, Stuck in the Moderation,….

  85. 85
    🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷 says:


    Is being stuck in moderation like being stuck in purgatory or something lol?

  86. 86
    Adam L Silverman says:

    @Jay: You know exactly what you did!

  87. 87
    Adam L Silverman says:

    @🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷: I can arrange a personal demonstration for you if you like? Then you can make your own determination.//

  88. 88
    Jay says:

    @🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷:

    It’s worse than being Steve in the Where’s Waldo Now,….

  89. 89
    🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷 says:

    @Adam L Silverman:
    No, I don’t think that will be necessary Archangel Adam lol

  90. 90

    Just wanted to say thanks for this write-up, Adam. It dovetails pretty well with some things I’ve been thinking for a while now, namely about how power tends to be used by the powerful against the powerless, in order to maintain their grip on power. This is why I am philosophically inclined towards anarchism, even though I don’t expect to live to see a state of anarchy in my lifetime. I think hierarchies are intrinsically susceptible to abuse, which is why I believe in flattening unnecessary ones as much as possible. (You will always have hierarchies based on knowledge, such as parent/child, teacher/student; this is necessary and probably even beneficial to society, but even these hierarchies are subject to abuse and should still be scrutinised.)

    As an unrelated case study, I’ve written before about how I feel Weinstein was able to get away with far more than he would have had he not been an influential Hollywood producer – because of his power, he was able to retaliate against those who spoke out against him, and far too many people who should’ve known better thus said nothing. Toxic masculinity and rape culture were obviously two major contributing factors as well, but if Weinstein had just been some nobody with no more power than anyone else, he almost certainly wouldn’t have gotten away with his crimes for so long even if you left the former two factors unchanged: the power and influence he had to retaliate against those who spoke out against his crimes are a large reason it took so long for them to come to light.

    So a significant recourse, as I see it, to all of these problems is to flatten out unnecessary hierarchies as much as you can. I don’t ever expect this to happen in practice, though, certainly not in my lifetime, and I don’t entirely know what an adequate short-term solution is, either. You can probably prosecute the terrorists under existing hate crime statues, under which their acts certainly qualify. Like you, Adam, I’m not convinced that punishment acts as a particularly effective deterrent to crimes. The most effective way to reduce the prevalence of such attacks would of course be effective gun control measures (and I’m increasingly coming to the position that the Second Amendment should be repealed outright, since the Supreme Court has decided to ignore the “well-regulated militia” clause outright), but #MassacreMitch is blocking those, and some people would still end up slipping through the cracks and obtaining weaponry.

    The real problem is that when hate this intense emerges like a malevolent genie from a bottle, it’s very difficult to put it back in. Racists and misogynists are emboldened in a way they absolutely weren’t before Dump’s “victory”. Social censure impelled many of them to keep their views underground, but seeing a fellow bigot as president* leading Nuremberg rallies all over the country has emboldened them, and it’s unsurprising that many of them have acted on their views (several news programmes have noted how when someone suggested shooting immigrants, his reaction was “Only in the Panhandle could you get away with a statement like that”, as though it were a joke. Incidentally, fuck the Panhandle).

    The problem, essentially, is our entire system of government, which is designed to favour the interests of the more powerful over the less powerful. This was an explicit intention of the Framers of Constitution, who constructed several veto points precisely because they did not trust the masses of people; for instance, the Electoral College was intended to prevent the election of an unqualified demagogue, and we’ve all seen how that worked out in practice. The Senate is another example, and it’s worth noting that Senators were originally appointed rather than elected. The design of our Constitution is why the exact same form of hate speech laws that might work perfectly well in Canada and Germany would inevitably be subject to abuse here. I don’t know what the fix is; we’d have to change our entire Constitution. Getting rid of the Senate would probably be a necessary step. Obviously electoral reform, overturning Citizens United, fixing the Supreme Court (though I’m not sure how) – there are a long list of steps.

    Deplatforming also helps a lot. Forcing sites like 8chan underground is going to drive away a lot of members who might otherwise be radicalised by them. Same with Alex Jones losing most of his social media accounts. (By the way, does someone know how I can participate in the above advertiser boycott if I don’t use Twitter?)

    Anyway, the thing that keeps me from losing all hope is that there are way more of us than there are of them, and that will get even truer as more of them die off; younger people are much more on our side, mostly due to our increased diversity. This is exactly what scares the shit out of the extreme right, by the way – one of the shooters explicitly referred to a racist meme known as the “great replacement” in the collection of putrid rambling that I refuse to dignify with the label “manifesto”. But holy shit, the next several years are going to be ugly. And that’s not even getting into climate change, which I don’t have any faith that we’re going to be able to solve.

    Some days it’s all I can do to get out of bed.

    Ceterum censeo factionem Republicanam esse delendam.

  91. 91
    Adam L Silverman says:


    It dovetails pretty well with some things I’ve been thinking for a while now, namely about how power tends to be used by the powerful against the powerless, in order to maintain their grip on power.

    I highly recommend this:

  92. 92
    🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷 says:


    I’m familiar with Where’s Waldo a little, but who’s Steve?

  93. 93
    debbie says:

    @🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷:

    Seriously? Steve in the ATL, etc.? You’ve forgotten him already???

  94. 94

    @rikyrah: It’s driving me nuts that they are completely ignoring the racism in the Dayton shooting. I’m seeing some new sources reporting that his sister was dating an AA and he was angry about it. I can’t find a reputable source on that though. Has anyone else seen this? And don’t even get me started on the misogyny….

  95. 95

    @Adam L Silverman: Thanks, I will add it to my reading list!

    ETA: This review seems relevant for those interested in the book’s content.

    Ceterum censeo factionem Republicanam esse delendam.

  96. 96
    Omnes Omnibus says:

    Under a number of hate speech laws, there are several commenters here who could plausibly be charged. Is that a direction we want to go?

  97. 97
    🇺🇸🌎 Goku (aka Amerikan Baka) 🗳🌷 says:

    Oh, lol. I didn’t realize he was referencing him

  98. 98
    zhena gogolia says:


    Oh, I love her! She’s great today in particular.

  99. 99
    debbie says:

    @Mrs. D. Ranged in AZ:

    I’d hold off on jumping to conclusions. The sister’s friend said in an interview that they were very close and that he was her protector. It’s quite a leap from there to intentionally shooting her dead.

  100. 100
    debbie says:

    @Omnes Omnibus:

    If I forgot to thank you for that link Sunday night, I’m thanking you now. I totally forgot about trapping.

  101. 101

    @Adam L Silverman: I believe I heard an All Things Considered on Sunday night where they talked to 4 or 5 different “experts”, one who was a prof from Harvard (I think) and an author on the topic. Anyway, his focus was on 4 different categories of gun deaths. He mentioned that the majority of deaths weren’t these mass shootings (no duh!) but “urban” gun violence (like what is happening in Chicago). And this prof wanted to focus on “hot people and hot places “….which immediately made me think, “yeah, and we all know how that will go down for communities of color and POC.” As always our ability to protect the public takes precedence over honoring the rights of minorities. As the Pres from the Brady org said on the show that the focus needs to be more on the supply of guns than the people because that is the ONE area we have never really addressed. The gun humper lobby has prevented us for far too long.

    And sort of related, before this “roundtable” discussion they had Samuel Rodriguez of the National Hispanic Christian Leadership Conference…who had the frigging nerve to say that both sides had been saying inflammatory things–he simply refused to admit that the provocation was all coming from Trumpsky and the silence on the right. Michelle Martin challenged him once on it and then let him just repeat that nonsense a couple of more times. Why do reporters do that? I don’t care if you have another question to get in….make him give you a damn answer as to what has been said on the left! It’s just infuriating to hear.

  102. 102

    @debbie: That’s why I was asking….hadn’t read it from reputable source and was wondering what y’all know.

  103. 103
    Adam L Silverman says:

    @Mrs. D. Ranged in AZ: That would be Jamie Fox. He and his longtime collaborator basically founded the study of mass murder, which now includes mass shootings. They had him on MSNBC on Monday night as well. Hearing from him is basically hearing it directly from the source.

  104. 104
    debbie says:

    @Mrs. D. Ranged in AZ:

    Got it. This was from a local NPR reporter (I’m in Columbus) who had interviewed friends and schoolmates. Nothing like that bogus crap I heard on the local Fox station last night (“@#@!$”).

  105. 105
    Adam L Silverman says:

    @debbie: @Mrs. D. Ranged in AZ: The issue here is the overall victimology, which we don’t know because the information hasn’t been released. He killed 9 and wounded another 47 if I’m recalling correctly. So 56 victims total. Of those, we know that 6 of the 9 killed were African American. What we don’t know, because it hasn’t been reported, is how many of the 47 wounded were. Right now, based on 2/3 of those killed being African Americans, it looks like he was targeting African Americans. And he very well may have been. But this may also be an erroneous conclusion depending on the demographics of the rest of the victims. What we don’t know yet is if this is signal or if it is noise.

  106. 106
    debbie says:

    @Adam L Silverman:

    Speaking as a rank amateur, it’s hard for me to believe that a 24-year-old would have a prefrontal cortex developed sufficiently to enable him to attack in a methodic manner while surrounded by intense chaos. If he were targeting African Americans, could he really remain that focused?

  107. 107
    Adam L Silverman says:

    @debbie: I don’t know. I saw reporting today that he had been telling people he had been hearing voices telling him to do bad and dangerous and damaging things since he was a teen, but that it was never followed up on. So if there was an undiagnosed and untreated mental illness at play here, the choice of targets might have made sense to him, but will not make any sense to the rest of us.

  108. 108
    debbie says:

    @Adam L Silverman:

    it was never followed up on.

    That would be horrible.

  109. 109
    Adam L Silverman says:

    @debbie: Given what he did Saturday night, it was horrible.

  110. 110
    Omnes Omnibus says:

    @debbie: You are welcome.

  111. 111
    smintheus says:

    Spray painting swastikas and anti-Semitic graffiti on a synagogue is terrorism. The whole point is to intimidate people. What is wrong with putting someone who does that in jail for a good few years? He won’t enjoy it, but the victims will feel a hell of a lot less unsafe if the state hammers people who are trying to terrorize them.

  112. 112
    Bill Arnold says:


    Ceterum censeo factionem Republicanam esse delendam.

    You’re very much not alone. (Tories as a bonus. :-)

  113. 113
    J R in WV says:


    Thanks for your comments, in general, very helpful facts.

  114. 114
    Matt says:

    That said, I have a different concern here. Specifically that a Federal criminalization of domestic terrorism will actually be used and directed against those who are ethnically, racially, and religiously non-conforming to the white, Christian majority that still exists in the US.

    “will be used”? Like Federal authorities haven’t had free rein to surveil anybody to the left of Barry Goldwater for the last half-century+? Or more importantly, that authority or not they’ve been *doing* it.

    One thing I suspect this *would* impact, OTOH, is the membership of Federal law enforcement. Lotta FBI guys who’d have to stop pretending they only hang out at the klavern / domestic-terror-party-haus for the cold beer…

  115. 115

    […] Should we make “domestic terrorism” a separate crime? Probably not. […]

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