No, Donald Trump Can’t Declare Antifa a Terrorist Group

A WhiteHouse.Gov petition asking for Antifa to be declared a terrorist organization has exceeded the number of signatures that in theory mandates the White House to respond. The petition is remarkably similar in language, including a number of sentences that are identical down to the point of grammatical errors, to an earlier WhiteHouse.Gov petition calling for Black Lives Matter to be declared a terrorist group. (The language of both petitions is included as an addendum to this article for readers to see for themselves)

Both petitions are so riddled with misunderstandings of the First Amendment, US anti-terrorism law, or the movements which they are seeking to criminalize it’s hard to know where to even start. The Obama Administration in its response to the anti-Black Lives Matter petition brought up probably the most salient point, being that the “White House plays no role in designating domestic terror organization.” In fact, the federal government doesn’t even “generate a list of domestic terror organizations.”

The authors of both petitions claim that the Pentagon has, using a definition of terrorism that defines it as “the use of violence and intimidation in pursuit of political aims,” declared ISIS a terrorist organization and demands the same be done to Antifa/Black Lives Matter. Under US law, the State Department does have the power to designate a foreign group a “foreign terrorist organization” (FTO) if their actions meet certain criteria (which are not the “legal” “definition” cited by both petitions). Thus, the petition is asking for something that simply does not exist.

The First Amendment gives wide protections to free speech. The Supreme Court has long held that advocacy of unlawful acts is protected by the First Amendment, unless  “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Furthermore, the Supreme Court has held that the First Amendment’s guarantee of freedom of association means that the state cannot criminalize membership in an organization that has both lawful and unlawful aims, unless an individual joins with the specific intent to further their unlawful aims. It is entirely unclear what the authors of either petition believe would be the outcome of a domestic terrorism designation, but the government cannot outlaw or criminalize a domestic political organization (This is to say nothing of the fact that Antifa is not an organization, but an ideology, and while there is an official Black Lives Matter organization, the phrase is frequently used by the media to describe protests for racial justice and against police violence more generally).

Of course, the lack of a formal method for a blanket criminalization of association does not mean federal or state agencies will not apply the moniker of terrorism to either movement. And such applications have real chilling effects.

While no formal legal designation exists, we’ve seen local or federal agencies refer to activists groups as “terrorists.” And we know the FBI has four decades now used its counter terrorism authorities to spy on, collect information about, and infiltrate activist organizations. The New Jersey State Department of Homeland Security and Preparedness’s deeply disturbing website includes a post on “Anarchist Extremists: Antifa” tagged as being about domestic terrorism. The info sheet defines Antifa as, “a subset of the anarchist movement and focus on issues involving racism, sexism, and anti- Semitism, as well as other perceived injustice.”  Based on this logic anyone who is a) an anarchist b) concerned about racism, sexism, and anti-Semitism is of interest to the New Jersey Department of Homeland Security and Preparedness. What the intended purpose of this dossier or similar ones on other political ideologies, such as Black separatism, is unclear as in spite of repeatedly calling the office Defending Rights & Dissent was never able to get anyone to answer the phone.

The narrative of “bad protesters” or “violent anarchists” have been trafficked by the media and law enforcement for decades to demonize dissent and justify repressing political expression. That Donald Trump, as well as, many in the media of picked up on a variation of this narrative has troubling implications. The movement to label Antifa (or Black Lives Matter) a terrorist organization is meant to legitimize increased state repression against protests and political speech. The petition on WhiteHouse.Gov, which has gotten media attention, serves this purpose. Nonetheless, it is important to realize that Donald Trump (or anyone else) cannot grant its central demand.

Addendum

Terrorism is defined as “the use of violence and intimidation in pursuit of political aims”. This definition is the same definition used to declare ISIS and other groups, as terrorist organizations. Black Lives Matter has earned this title due to its violent actions in multiple cities and their influence in the killings of multiple police officers throughout the United States. This group has already been described as a hate group because of it’s racist and police hating actions by Milwaukee Sheriff David Clarke, a speaker at last years RNC. It is time for the pentagon to be consistent in its actions – and just as they rightfully declared ISIS a terror group, they must declare Black Lives Matter a terror group – on the grounds of principle, integrity, morality, and safety.

Terrorism is defined as “the use of violence and intimidation in pursuit of political aims”. This definition is the same definition used to declare ISIS and other groups, as terrorist organizations. AntiFa has earned this title due to its violent actions in multiple cities and their influence in the killings of multiple police officers throughout the United States. It is time for the pentagon to be consistent in its actions – and just as they rightfully declared ISIS a terror group, they must declare AntiFa a terror group – on the grounds of principle, integrity, morality, and safety.