Domestic Terrorism and First Amendment Protections

My second post from another previous writing of mine, this time, from a paper titled “Countering Domestic Terror: What the USA Can Do to Dismantle Domestic Terror Groups”.

Although the literature on first amendment protections for domestic terrorist groups is limited mostly to foreign groups operating on American soil, there still are some general probations regarding the freedom of speech that the first amendment protects. In the New York University Journal of Law & Liberty, constitutional scholar Robert Natelson noted several exceptions to freedom of the speech under the original intent doctrine, including “defamation, obscenity, perjury, sedition, blasphemy, breach of parliamentary privilege, and treason.” [1]

This line of reasoning holds some similarities with the Supreme Court case of Yates v. United States, in which the Communist Party USA could not be indicted under the Smith Act for merely to assert the belief that the government should be overthrown, rather action should be at least encouraged before violating the Smith Act. [2]

Two decades later, the Supreme Court case National Socialist Party of America v. Village of Skokie ruled that the National Socialist Party of America, which uses the Nazi swastika [3] in its rallies, can march through Skokie, Illinois, whose population is predominantly Jewish. The Nazi swastika, the court decided, was a symbolic form of free speech and did not constitute as indicting violence in and of itself. [4]

In an attempt to end the KKK, a petition was created on the White House website in June 2015, calling for the White House to “declare [the KKK] as such [terrorists] and deny them the legitimacy they currently appreciate. There is no excuse to let them organize.” [5] After reaching 109,568 signatures, the White House responded to the petition, saying that “although simply believing in white supremacy or belonging to a white supremacist group, while abhorrent, is not a crime, the federal government has successfully charged white supremacists over the years using many federal statutes, including those prohibiting civil rights violations and solicitation to commit crimes of violence.” [6]

In a list of these civil rights violations compiled by the Congressional Research Service, the Hate Crime Acts “makes it unlawful to willfully cause bodily injury (or attempt to do so) with the use of “fire, a firearm, a dangerous weapon, or an explosive or incendiary device” […] when the crime was committed “because of the actual or perceived race, color, religion, or national origin of any person”” [7] The solicitation to commit crimes of violence stems from Title 18 of the United States Code, laying out criminal punishments to those who “solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in […] use of physical force against property or against the person of another in violation of the laws of the United States.” [8]

[1]: Natelson, Robert. “DOES “THE FREEDOM OF THE PRESS” INCLUDE A RIGHT TO ANONYMITY? THE ORIGINAL MEANING.” New York University Journal of Law & Liberty 9, no. 1 (2015): 195-96. Accessed February 29, 2016.
[2]: Yates v. United States, 354 U.S. 298. (1957).
[3]: As opposed to the swastika used millennia before Hitler’s Germany as a symbol of good fortune.
[4]: National Socialist Party of America v. Village of Skokie, 432 U.S. 43. (1977).
[5]: “Recognize the Klu Klux Klan as a Domestic Terrorist Organization & Make Their Eradication a Homeland Security Priority.” The White House. June 29, 2015. Accessed February 29, 2016.
[6]: Ibid.
[7]: Smith, Alison. “Overview of Selected Federal Criminal Civil Rights Statutes.” Congressional Research Service. December 16, 2014. Accessed February 29, 2016.
[8]: 18 U.S. Code § 373(a)


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