(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.
* 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.