Declaring Antifa A Terrorist Organization Could Achieve Its Anti-Free Speech Agenda

Antifa_The_Anti-Fascist_HandbookBelow is my column in The Los Angeles Times on President Donald Trump’s declaration that Antifa would be designated as a terrorist organization. I have explained that such a designation would ordinarily be made for “foreign terrorist organizations” by the State Department.  It is also unnecessary. As I wrote recently, there is a case in New York that could be the perfect framing prosecution for treating rioting as domestic terrorism.

Ironically, Antifa is a vehemently anti-free speech organization and it could achieve that purpose if it is declared a terrorist organization.  Such a designation of the entire movement could prove highly damaging to free speech in this country.

Here is the column:

 

President Trump tweeted that his administration will designate “antifa,” a term used by some self-described anti-fascists, a “terrorist organization.”

We still do not have a clear idea of what groups are involved in these protests. As a long-standing critic of antifa, which has been a plague of college campuses, I have no sympathy for this militant, anti-free-speech movement. But President Trump’s declaration is legally dubious and constitutionally dangerous.

A president does not have power to declare an entity to be a terrorist organization. Such a designation under federal law is confined to “foreign terrorist” organizations — and for that reason, these designations are made through the U.S. State Department.

While many have dismissed the possibility of a terrorist designation for antifa because it is a domestic movement, the administration could make a slim, if highly challengeable, claim that antifa has international reach with supporters in other countries. It would be a stretch, but people should not assume that such a designation is impossible.

The administration could also move to bar travel and entry of those associated with the movement, including foreign associates. Most worrisome, such a designation can allow a broader crackdown, and even criminal charges, for those deemed to offer “material support” to the movement.

That, of course, raises serious constitutional concerns. This terrorist designation would raise chilling implications for free speech in the United States.

First, antifa is not a traditional organization. Indeed, it is designed not to have any specific leadership or structure that could be targeted by the government. It is an informal and amorphous collection of individuals and groups who hold militant and anarchist views. The designation of such an ambiguously defined group would allow the government to trigger criminal investigative and prosecution powers over a vaguely defined range of political activists.

Second, many people in the antifa movement engage in traditional acts of civil disobedience, from blocking roads to chaining themselves to doors. Many organizations have had members who have been investigated and prosecuted for criminal activity without being declared terrorist entities, ranging from hate groups like the Ku Klux Klan to more traditional political groups like Greenpeace.

If the government can designate a terrorist organization based on the conduct of some members, the criminalization of political speech could be virtually unlimited.

Finally, what we’ve seen across the country is spontaneous looting and rioting caused by pent-up anger and, in some cases, opportunistic crime. To suggest that antifa members are driving this damage overstates their importance and understates the problem.

We do not need to use the designation of terrorist organizations to curb acts of violence in this country.  When antifa members or others engage in criminal acts, we have ample criminal laws to use against them. Indeed, cases currently being prosecuted by the Justice Department for throwing Molotov cocktails in New York, including charges against two young attorneys, are likely to be framed as domestic terrorism without any formal designation.

As for the movement itself, all we all need to oppose antifa’s anti-free speech agenda with the strongest weapon in our arsenal: free speech itself.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a CBS and BBC legal analyst.


 

137 thoughts on “Declaring Antifa A Terrorist Organization Could Achieve Its Anti-Free Speech Agenda”

  1. I disagree. The element of anger that has reached a boiling point is definitely there; however, it is clearly being fomented by outside forces and there is footage documenting that. It is really incredible to me how even highly intelligent people fail to see that there is a very clear pattern here of trying to take down, not Trump, but America, and you can’t get America without Trump because he will fight with every cell in his body for this country. We’ve had four years of this and you people still do not see? You really think Russia Russia Russia impeach impeach impeach virus virus virus riot riot riot are unconnected? Try looking at the situation, not legally, but holistically, as if you were a doctor treating a patient. The patient has a systemic infection and it is going to manifest in a lot more ways before Nov. 3. History will clearly show how this entire progression has been, not a series of discrete catastrophes, but a unfiied effort to take over this country. The problem is that by the time we’re reading about it in history books, it will be far too late. People think this violence is magically going to stop when Biden is in the Oval Office. It is just going to get worse. There’s going to be total anarchy because that has always been the goal. Trump just got in the way. Antifa is a virus and a terrorist designation is hydroxychloroquine. It may not be the perfect solution but it’s all we have.

  2. Free speech is certainly in danger – how much freedom should looters have to coordinate the timing and locations of the looting, and conspiring to commit arson & other crimes?

    You may be technically correct about laws, but there should be far more arrests and much less violence. You say:

    “When antifa members or others engage in criminal acts, we have ample criminal laws to use against them. “

    At the state and city level, like NYC, the Dem mayor & Dem governor have been releasing previously convicted criminals, and those arrested for criminal acts now are mostly being released. Perhaps we have ample laws, but the political-justices system selectively refuses to enforce many of them, for many rioting looters, at this time.

    The gov’t passes laws, but then chooses NOT to enforce some of them, some of the time, so then builds up popular support for more laws including laws reducing free speech.

    Those who care for free speech should be caring that criminals who loot are not being arrested, so there is a call for more laws, rather than enforcement of existing laws.

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