While federal law prohibits international terrorism, it defines but does not yet prohibit domestic terrorism. In the absence of congressional authorization, the FBI and Justice Department simply have not had the resources to address the increasing frequency of white supremacist violence over the last decade.
Fortunately, most states filled the gap after 9/11. The first wave of state laws in 2002 closely followed the federal Patriot Act of 2001 in focusing on threats such as the use of “weapons of mass destruction.” And in the past five years, many states updated their anti-terrorism statutes to cover racially and religiously motivated domestic hate crimes.
Unfortunately, some states have also been using their anti-terrorism statutes to combat progressive activism. The most recent example is in Atlanta, where Georgia’s anti-terrorism statute, despite containing a provision protecting free speech, is being wielded against 42 individuals who have been protesting the building of a public safety training center known as “Cop City” in the Weelaunee Forest. Their “terrorist” crimes include attending a music event sponsored by environmental activists, marching in downtown Atlanta and tree-sitting. And to compound the injustice, the Atlanta Police Department apparently didn’t make the effort to find probable cause against all of the defendants, according to reporting by The Guardian.
Even if the ridiculous charges are suddenly or eventually dropped, the damage has already been done. Most of these individuals have been imprisoned for weeks to months without bail, and they still face long and costly legal battles.
As progressives see more and more of their ideological compatriots being forced into the criminal justice system, many of them will be less likely to exercise their own First Amendment rights to free speech and association. This chilling effect will only be compounded by Georgia Gov. Brian Kemp’s Jan. 26 declaration of a state of emergency against “unlawful assemblage.” In direct contradiction of the federal Posse Comitatus Act, this declaration gives the governor power to use the National Guard against its own citizens, even in the context of lawful political protest.
Prosecutors are referring to many of the Atlanta defendants as “outside agitators,” the very same pejorative label that was applied to Freedom Riders and other civil rights protesters in the 1960s. The idea is to “other” them, to create the impression that this isn’t “our” fight, that “they” don’t belong, that “they” are opposed to “us.” The goal, in other words, is to divide movements from locals who might sympathize with them. This is a tactic that was commonly employed in the war against international terrorism; it explains the divisive anti-Islamic rhetoric that many Americans used, and many other Americans were subjected to, for years after 9/11.
Georgia is hardly alone in its unconstitutional crusade against progressives. In Tennessee, Republican legislators recently expelled two Black House Democrats and sanctioned a third legislator, a white woman, because they stood with March for Our Lives protesters demanding sensible gun reforms.
Several states have passed “protest restriction laws” that criminalize what is otherwise legitimate policy advocacy. South Dakota and Alabama subject not-for-profit organizations to vicarious liability for individual acts of vandalism. North Carolina equates peaceful marching with rioting and criminalizes merely supporting a march that results in criminal behavior.
With incremental fascist steps like this, it is only a matter of time before we see drag show attendees or parents attending a protest against book bans being arrested and charged with terrorism. Other targets will likely include activists for racial justice, environmental justice, assault weapon bans, abortion rights, labor rights and transgender rights.
Congress should once again consider passing a federal domestic terrorism law. Just as the federal government is our primary shield against international terrorism, it should be our primary shield against domestic terrorism as well. The federal government is in a much better position than the states to monitor and minimize this threat, and too many Republican-dominated states are now abusing their own anti-terrorism statutes. They are using these statutes not to combat terrorism but to weaken their political opposition.
This development threatens the First Amendment rights of all Americans, both left and right.
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ABOUT THE WRITERS
Beth Gazley is a professor at Indiana University at Bloomington’s Paul H. O’Neill School of Public and Environmental Affairs. Ken Levy is a professor at Louisiana State University’s law school.
