Domestic Terrorism Bill: What Would Brandeis Say?

The US Congress returns this week from its August recess. Mass shootings, unfortunately, did not take a vacation. White supremacy, religious bigotry and racial hatred have spawned a long list of atrocities — from the Tree of Life Synagogue in Pittsburgh, Pennsylvania, to Chabad in suburban San Diego, California, and, most recently, a Walmart in El Paso, Texas. The New York Times reports that, in August alone 53 people were killed in such incidents.   Motives remain elusive in some shootings; in other cases, hatred of Jews (Pittsburgh and San Diego) or Hispanics (El Paso) spurred the violence.

In the face of these tragedies, Representative Adam Schiff (D-CA) and Senator Martha McSally (R-AZ) have proposed bills to make “domestic terrorism” a crime. Current law authorizes increased penalties for someone committing violence based on hatred of the victim’s race, religion, sex or national origin. The US Supreme Court upheld its constitutionality. Schiff and McSally proposals outlaw conduct already prohibited.  However, the bills add provisions which would violate the US Constitution.

Specifically, Senator McSally’s bill, which is nearly identical to Representative Schiff’s, outlaws “domestic terrorism” which is defined as actions intended to “influence” government policy.  The bill would punish, with a sentence of up to 10 years, any person who “threatens” to kill or injure or “create a substantial risk of bodily injury” by “intentionally destroying. . . property.”

On the surface, this bill seems reasonable, as it aims to crack down on hate.  However, the First Amendment protects speech — even hateful words — and expression such as burning the American flag to protest US, intentionally destroying property which may create a substantial risk of injury to bystanders and is definitely “intend[ed] to influence” government policy.  In 1989, the Supreme Court held that flag burning is a form of protected expression. Texas v, Johnson, 491 US 397 (1989). 

Moreover, punishing a “threat” when no followup occurs, violates the First Amendment’s guarantee of freedom of speech.  What someone perceives as a “threat” may actually amount to robust debate.  

After World War II, the US faced a communist threat. The government considered those who met to discuss the works of Karl Marx and Frederich Engels — urging workers to engage in violent revolution — as threats to the existence of the Republic.  The US Supreme Court mistakenly upheld the convictions of 11 defendants who engaged in activity similar to that outlawed in the Domestic Terrorism Bill. As the Court described in Dennis v. United States, 341 US 494 (1951), the group organized the Communist Party of the US, which advocated the violent overthrow of the US government and “knowingly and willfully” advocated for the “necessity and duty” to overthrow the government through violence.  In short, the Communists threatened violence. However, Justices Hugo L. Black and William O. Douglas pointed out in dissent, the group did nothing more than meet to discuss the theories of Communism. Many of us studied the same works in college.  Today, we look back in sorrow at the suppression of expression which the Court countenanced in those days.

Ninety-two years ago, Justice Louis D. Brandeis eloquently wrote:

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. . . . .  Every denunciation of existing law tends in some measure to increase the probability that there will be a violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching [the overthrow of the government] increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. . . . Such must be the rule if authority must be reconciled with freedom. (Whitney v. California, 274 US 357 (1927))

Brandeis was called by his contemporaries “Old Isaiah.”  He was ahead of his time in understanding the principles of democracy.  Brandeis courageously enunciated, like the prophets of old, the eternal ideals of justice and righteousness.

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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