by The Daily Signal | 3.27.18
Amy Swearer is a visiting legal fellow at the Meese Center for Legal and Judicial Studies at The Heritage Foundation.
On Jan. 19, a Virginia lawmaker introduced a bill in the state’s Legislature specifically aimed at “combating the rise in white supremacist violence.”
H.B 1601, prepared by Democratic Del. Marcia Price—with guidance from Virginia Attorney General Mark Herring—would create a criminal offense for “domestic terrorism” and require the superintendent of the Virginia State Police to label certain groups as “domestic terrorist organizations.”
Once a group is labeled a “domestic terrorist organization,” the bill would prohibit the gathering of group members in certain situations, enable the attorney general to pre-emptively stop the group from committing certain actions, and criminalize the provision of “material support” to the group.
Violence prompted by the hatred of a certain group of individuals is abhorrent, and acts of terror or violence directed at people by virtue of who they are should be prosecuted to the fullest extent of the law.
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This bill, however, is a constitutionally dangerous and unnecessary addition to Virginia’s criminal code that creates more problems than it solves.
Numerous other state lawmakers and legal advocates have rightly condemned the bill’s broad language and sweeping scope, which could very easily criminalize actions protected by the First Amendment and open the door to discriminatory enforcement against groups that are politically unpopular yet nonviolent.
Virginia’s Domestic Unrest
Virginia garnered national attention in the last half of 2017, when thousands of white nationalists and counterdemonstrators descended on the college town of Charlottesville—resulting in days of violent clashes between the two groups, including a car attack that left one woman dead and many others injured.
Both sides were roundly condemned for bringing body armor, shields, clubs, firearms, and even makeshift blowtorches to the clashes, with all involved appearing to claim their weapons were legally owned and utilized only in self-defense.
Attorney General Jeff Sessions called the car attack an act of domestic terrorism, and initiated a civil rights investigation to determine if the driver would be prosecuted under federal hate crime statutes. Several other highly publicized arrests were made in connection to the most egregious instances of assault by protesters and counterprotesters.
While Virginia Gov. Terry McAuliffe defended the state police for doing a “tremendous job,” others criticized what they called a policy of relative nonintervention between protesters and counterprotesters.
Further, some commentators and news outlets demanded to know why the original demonstration had not been shut down, and questioned the decision of a federal district court judge allowing the demonstration to continue as planned.
An Extreme and Unnecessary Measure
It’s understandable that Virginia’s lawmakers want to avoid a repeat of Charlottesville’s shocking display of violence, bigotry, and hatred by creating a legal framework that might prevent similar demonstrations in the future.
But even people sympathetic with this goal have pointed out the significant problems posed by the bill’s broad language, and the authority it gives the government to label groups “domestic terrorist organizations” based largely on their beliefs or speech.
The first problem stems from H.B. 1601’s definition of “domestic terrorism.”
The federal definition, found in 18 U.S.C. § 2331(5), covers lethal acts meant to terrorize any civilian population or to affect government policy. H.B. 1601, however, would consider even nonviolent and minimally violent actions to be “domestic terrorism,” but only if committed on the basis of a small subset of personal characteristics (race, religion, national origin, gender, sexual orientation, and disability) or for the purpose of restraining a person’s exercise of his or her constitutional rights.
Notably, this proposed definition would exclude groups like Antifa, which seeks to intimidate and harass on the basis of political ideology, and Black Lives Matter, which has often resorted to violence and destruction in order to affect government policy.
The definition could lead to absurd and discriminatory enforcement standards.
Consider the following scenario: Members of a university’s LGBT student group, angered that their school is hosting two Christian speakers whom they consider homophobic, attempt to restrain the speakers’ exercise of their First Amendment rights by disrupting the two events.
In the course of the disruption, university officials tell them to leave the auditorium. They refuse, and are arrested for trespassing. A few members also engage in a physical confrontation at each event, resulting in no real injuries but still leading to misdemeanor assault convictions.
Under H.B. 1601, the LGBT students would be guilty of domestic terrorism because they arguably committed criminal acts with the intent of intimidating the speakers on the basis of their religious beliefs, with the goal of preventing the exercise of their First Amendment rights.
Further, because its members acted this way on two separate, unrelated occasions, the LGBT group would now be labeled a “domestic terrorist organization.”
But, if members of Black Lives Matter riot and shut down entire blocks of a city—burning police cars, defacing property, and looting—as a means of motivating the city government to enact different policing policies, this could not be prosecuted as domestic terrorism. Nor could the actions of Antifa qualify as domestic terrorism should its members block interstate traffic, smash car windows, and pummel Trump supporters wearing “Make America Great Again” hats as a means of instilling fear on the basis of political ideology.
Equally concerning is H.B. 1601’s language imposing criminal sanctions on anyone who “knowingly provides material support or resources” to a designated domestic terrorist organization, with “material support” defined as any property or service other than medical or religious care.
There is no requirement that the material support be intended for or actually used to further an unlawful objective. This appears to make criminals out of spouses who provide transportation to a group meeting, cleaning companies that contract to clean the group’s facility, or even attorneys hired by the group to fight their designation as a domestic terrorist organization.
Finally, as noted by John W. Whitehead of the Rutherford Institute, there is a very real danger that the law will be used to demonize and punish unpopular social or political organizations.
At various points in U.S. history, civil rights leaders like Martin Luther King Jr. were viewed as domestic terrorists, and arguably some of his acts of civil disobedience could be construed to fall within the confines of H.B. 1601.
King was, in fact, arrested and jailed for trespassing after refusing to leave a “whites only” restaurant, and it wouldn’t have been a stretch at that time to say his trespassing was an attempt to infringe upon the owner’s right to deny him service.
Because the bill’s scope and language is so broad, and because its backers are unanimously concerned with only certain types of actions against certain types of people, discriminatory enforcement appears an almost inevitable consequence of this bill becoming law.
Laws Already on the Books
Virginia already has criminal statutes prohibiting every nonspeech action covered by H.B. 1601—statutes that can be enforced equally against all perpetrators regardless of the race, religion, or other personal characteristics of the victim.
It also has “mob laws” that make it a crime for people to assemble for the purpose of committing violent acts, as well as “unlawful assembly” statutes authorizing the dispersal of groups that engage in violence.
Further, a number of statutes provide stiffer punishments for crimes motivated by race, religion, and gender (e.g., § 18.2-121).
And despite claims by proponents that this bill would have prevented the Charlottesville incident, it’s not clear this is true—even bigoted, hate-filled groups retain their First Amendment rights to demonstrate in public forums, and the Constitution places a high burden for issuing prior restraints on free speech.
Just last year, the Supreme Court determined in Packingham v. North Carolina that not even convicted sex offenders can have their First Amendment rights pre-emptively restricted based solely on the fact they might abuse these rights to commit a crime.
It’s likely that, even under H.B. 1601, a federal judge still would have issued an injunction allowing the demonstration to be held, absent some extraordinary showing of planned, imminent violence.
White nationalism is a vile, senseless ideology that betrays America’s most deeply held faith in the interconnectedness of a single human race, endowed by its creator with unalienable rights to life, liberty, and the pursuit of happiness.
That ideology must continue to be shunned, not countered with bad laws that undermine the rights of other citizens.
Written by The Daily Signal
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