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Walter Olson
Yesterday, President Donald Trump signed an executive order laying out plans to use law enforcement and regulation to “investigate and disrupt networks, entities, and organizations” that, according to him, are responsible for encouraging acts of political violence. The order envisages the use of government power to crack down on a vaguely specified mix of organizational, associational, and individual speech and action, much of which is properly seen as protected by the First Amendment.
Among the announced targets of the order, entitled “Countering Domestic Terrorism and Organized Political Violence,” are “campaigns of … radicalization,” that is, speech persuading people to adopt radical ideas, grounded in a range of aims that include wanting to “change or direct policy outcomes.” Another way of describing nonviolent speech that agitates to transform opinion so as to “change… policy outcomes” might be “petitioning for the redress of grievances.”
It states that such campaigns can lead to the encouragement of violence and often begin with “isolating and dehumanizing specific targets,” a striking choice of example because it’s a kind of troublesome speech to which Trump himself is hardly a stranger (“human scum”).
The executive order goes on to target the practice of “doxxing,” that is, the accurate reporting of persons’ identities and details about them, without acknowledging that many instances of such reporting by itself constitute speech protected by the First Amendment, most especially as applied to employees of the state acting in the name of the public, such as law enforcers.
It broadly implies that it will treat speech as grounds for law enforcement action if it tends toward “justifying” violence, even though that’s not in fact the standard for loss of First Amendment protection. Trump and his allies have elsewhere taken the view that to call his appointees authoritarians or fascists is to justify or incite violence against them.
Significantly, it calls for “a national strategy to investigate and disrupt networks, entities, and organizations” it considers responsible for such agitation “before they result in violent political acts”—that is, at a point at which no one has behaved violently at all. Last week, colleague Matthew Cavedon discussed the still-unclear standards for putting a group under surveillance, which are “actually a problem of Fourth Amendment law, not First Amendment doctrine.”
It calls for directing a full range of “anti-terrorism” financial weaponry against opponents—even though Trump has in the past rightly criticized state-led schemes to “de-bank” political extremists—and for going after the tax exemptions of charities, foundations, and the like that have bestowed funds on targeted organizations.
More than anything, this order signals a crackdown directed against speech by one side in the national discussion, Trump’s political adversaries. It matters not that Trump himself has regularly spoken in terms that might equally be seen as dehumanizing opponents, likening them to some of history’s worst totalitarian rulers, and even at times countenancing violence, or that his allies regularly engage in revealing the identity of obscure public employees who then experience death threats and similar pressures. Those will not be included among what the order describes as “sophisticated, organized campaigns” designed to “silence opposing speech, limit political activity, change or direct policy outcomes, and prevent the functioning of a democratic society.”
As with Trump’s wave of prosecutions instituted over the objections of professional prosecutors, we now have a signal for all willing to listen that federal law enforcement is being turned into the instrument of one man’s zeal for revenge and appetite to accumulate power.
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