First Amendment Rights Vs. Public Safety — The Balancing Act Of Prosecuting Domestic Terrorism

November 18, 2021

By Aara Ramesh

A week ago, the Department of Homeland Security (DHS) issued a warning that the U.S. is facing a “heightened threat environment” from domestic terrorists this holiday season. Though there have been no “credible” or specific threats yet made, the DHS says that a series of religious holidays could create potential targets. 

Per the Associated Press, this is the fourth time in 2021 that the DHS has sent out such a bulletin. In fact, since the Jan. 6 insurrection at the U.S. Capitol and President Joe Biden’s inauguration later that same month, the threat posed by domestic extremists has been a key focus area for the Department of Justice (DOJ) and other law enforcement agencies.

In September, we wrote about how the understanding of “terrorism” has changed in the two decades since 9/11 and at the shifting landscape that is defined more by domestic actors and ideologies, and less by foreign groups’ goals.

Prominent examples of what might constitute domestic terrorism include Elliot Rodger’s 2014 shooting spree in Santa Barbara; Dylann Roof’s 2015 murder of nine Black churchgoers in Charleston; the 2017 white supremacist/neo-Nazi rally in Charlottesville; the anti-Hispanic shooting rampage at a Walmart in El Paso in 2019; the Jan 6. insurrection at the U.S Capitol; various nationwide synagogue attacks; and the rise since last year in anti-Asian hate crimes.

In that piece, we also mentioned that law enforcement faces “significant challenges” when it comes to thwarting homegrown violent extremists (motivated by the ideologies of foreign terrorist organizations) and domestic terrorists (those who plan to use violence to achieve a set of goals but are not directed or inspired by foreign terrorist organizations), mainly because of the ubiquity and ease of online self-radicalization, and the diffused nature of those extremists’ networks and affiliations.

The biggest problem, however, that law enforcement faces when it comes to dealing with domestic terrorism is that there is no law that governs this area and that enacting one would be extremely challenging. We explore this loophole in today’s piece.

At the center of this is a debate over what constitutes constitutionally protected free speech and what can be considered a legitimate threat of violence.

For instance, there is some evidence that law enforcement saw some warning signs in the lead-up to the Jan. 6 insurrection about what the rioters had planned, but that this chatter was chalked up to people just exercising their free speech rights under the First Amendment.

It is difficult, according to legal and constitutional scholars, to know where to draw the line. Law enforcement and privately-owned internet companies are not — and nor should they be — equipped, it is said, to distinguish between someone just complaining on the internet, making joke threats or tall claims they would never follow through on, and those who are legitimately telegraphing their intention to cause harm.

As the Verge points out, not everyone who complains about “political correctness” online wants to “imminently establish an all-white ethnostate.” Or, similarly, there is a marked difference between someone who believes a woman’s place is at home and an incel (involuntary celibate) advocating for every man to be assigned a woman as a sex slave.

In testifying before Congress, John Cohen, the official in charge of intelligence analysis at the DHS, said that “analysts need to be able to distinguish […] between constitutionally protected speech and threat-related activity” — something they are not equipped to do at the moment.

Under current law, a white supremacist or incel who commits a terror attack cannot be prosecuted under that terminology. They can face murder, hate crime, or weapons charges, but “terrorism” is a crime reserved for the 60-odd federally designated foreign terrorist organizations (most, but not all, of which are Islamist). 

Hate crime charges are typically added on to other criminal charges like assault or murder, to increase the punishment meted out for the crimes in question. For instance, a “potential sentence for a hate crime assault would be higher than an assault with no hate crime enhancement.”

It is, of course, the prosecutor who decides when to append a hate crime or terrorism charge, and it can be difficult to successfully argue and prove terrorism charges as they generally “rely on motive and other psychological factors.” Such charges are usually levied against those with affiliations to the State Department’s list of foreign terrorist organizations.

It may be easier to get a conviction for domestic organizations and individuals on charges like murder, assault, weapons possession, conspiracy, or organized crime. The only difference a targeted domestic terrorism law would make, some detractors say, would be in who ends up prosecuting a case.

In the past, perpetrators of mass violence and murder have been charged with both murder (on the state level) and hate crimes (federally), but have not faced terrorism charges, which are more nebulous and difficult to define in legal terms.

Even Timothy McVeigh, who notoriously set off a truck bomb at a federal building in Oklahoma City in 1995, killing 168 people, was charged with and executed for murder, and not for terrorism, despite that incident being widely acknowledged as the worst domestic terror attack up to that point.

Two key pieces of legislation have already been introduced in the House (H.R.350) and the Senate (S.964) this year to address this problem, titled, “The Domestic Terrorism Prevention Act of 2021.” The bills seek to enhance information sharing on the problem at hand, understand links between domestic terrorism and hate crimes, and boost prosecution of such attacks, among other measures.

The question is whether it is even desirable to enact a domestic terrorism law. As one expert put it, in legally prosecuting domestic terrorism, there is a “real danger of the government criminalizing ideology, theology and beliefs rather than focusing on specific criminal acts.”

In addition, constitutional experts warn that any broad-based domestic terrorism law would likely face several legal challenges, with the Supreme Court likely to rule that “otherwise lawful support” of a domestic organization cannot be criminalized by the government. Precedent set by the Court seemingly confirms this view.

There is also a difference in perception between domestic terrorism and international terrorism. Neal Katyal, a legal scholar and ex-Justice Department official, underscored this disparity by pointing out, after the Charlottesville attack, that if the perpetrator had espoused the ideology of the Islamic State or Al Qaida, he could have been charged with engaging in terrorism.

As such, the debate right now remains more political than legal.