The below is not legal advice. See disclaimer.
Good morning, on the strangest Monday morning in American history
This morning, on Twitter, the President of the United States declared Antifa – Antifaschiste Aktion, an originally-European street gang of far left wing activists – to be a terrorist organization.
Whether we agree with that designation or not, the fact that it has been made poses business challenges. It does not help that the President’s wording was legally confusing.
The United States recognizes two classes of terrorism: domestic and foreign.
The term “designation” is usually only associated with the foreign type. Section 302 of the Anti-terrorism and Effective Death Penalty Act of 1994 permits the Secretary of State to designate foreign organizations that engage in terrorist activity which threatens the security of the United States nationals or the United States. The consequences of such designation include possible asset seizures of the foreign domestic terrorist group, at the direction of the Secretary of the Treasury, and most importantly, the creation of criminal sanctions for providing “material support or resources” to a foreign terrorist organization (or “FTO”) or attempting or conspiring to do so, per 18 U.S. Code § 2339B.
The list of FTOs includes a veritable rogues’ gallery of international baddies including e.g. the Real IRA, Continuity IRA, FARC, the PFLP, Shining Path, ELN, ETA, Aum Shinrikyo, and of course various national chapters of Al-Qaeda and ISIS.
The First Amendment makes domestic terrorism different from foreign terrorism
What’s not on the list are American groups known or alleged to have engaged in terrorist activity, such as various white nationalist groups, the Klan, or, now, the U.S. chapter of Antifa. There is a reason for this, and that reason is the First Amendment to the U.S. Constitution. Lest we need a reminder what this says, I reproduce it below:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
As applied to the states and subordinate entities through the Fourteenth Amendment, the general import of this rule is that states do not have the power to control political thought.
“Freedom of speech” does not mean “freedom to say whatever the hell you want.” The English common law tradition has long recognized that certain types of low-value speech, including defamation, threatening and incitement, have no place in civilized society. Low-value speech of that type was not then, and is not now, legally tolerable.
The First Amendment was designed to address very specific political crimes, chiefly a crime known as “seditious libel” and a fake news tort known as “scandalum magnatum.”. Americans will be familiar with seditious libel through the grade-school history story of New York publisher John Peter Zenger. In 1733 Zenger, we will recall, printed editorial material which was offensive to the then-governor of New York. He was charged with seditious libel and acquitted by a jury, on the basis that truth was a defense. He is thus celebrated as an early hero of freedom of the press.
But if you ask most people what “seditious libel” actually is, they’ll struggle to give much of a definition beyond “uh, saying bad stuff about the government.” The true significance of that ruling can really only be understood if we actually look at what seditious libel actually was, element-by-element, and compare it to libel today. I did the reading here so you wouldn’t have to; summarizing, seditious libel is
- In writing
- That encouraged a breach of the peace, i.e., “diminished the affection of the people for the King or his minister and thereby encouraged rebellion”
- Which is published
- With malice; which is rebuttably presumed on publication;
- Punishable as a misdemeanor.
See Philip A. Hamburger, The Development of the Law of Seditious Libel and Control of the Press, 37 Stan. L. Rev. 661, 678 (1985), citing trial of Dover, 6 STATE TRIALS 874 (1816) at 558 (King’s Bench, 1663).
Compare that with defamation, which is a
- A false statement of fact
- Which is published
- Which is likely to lower the estimation of the claimant in the eyes of right thinking people
If we examine the elements of seditious libel, we notice that one element we would customarily require to maintain a modern-day defamation action is missing: there is no requirement that the statement be false. That is, if someone defames the King or his Ministers and thereby “encouraged rebellion,” which term really meant any disaffection of the state whatsoever, even if the statement were true, one could still be found guilty of libel and punished accordingly.
A related tort, as I mentioned, was “scandalum magnatum.” This was a publication in news, which was false, which slandered a peer, great man or institution in England. Scandalum magnatum was more limited in scope and harder to prove than seditious libel – the publication had to be news, and that news had to be false – so, as a result, this action eventually fell into disfavor, and seditious libel was the preferred mechanism for punishing thoughtcrime expressed by enemies of the state.
The English, in their very English way, tolerated this state of affairs for several hundred years; seditious libel was in fact regarded as something of a slap on the wrist, since an identical fact pattern could also sustain a charge of treason (but whereas treason was punishable by death, seditious libel was a misdemeanor).
Without waxing lyrical about the founding fathers and their motivations for creating the United States, they recognized that speaking truth about the government was an important element of a functioning democracy. For this reason, “the First Amendment was intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government without any incitement to law-breaking, forever impossible in the United States of America.” (See Zechariah Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 947 (1919))
Generally speaking, in the United States, ideas are not illegal, “hate speech” is not illegal, advocacy of terrorism is not illegal and mere membership of a political group, however terrible its goals and however unlawful the end of its political advocacy, is not, by itself, illegal. Any law stating otherwise, generally, will be unconstitutional. This is as true with the Klan as it is with Antifa, as confirmed in the case Brandenburg v. Ohio, 395 U.S. 444 (1969).
This is the basic legal background necessary to understand the reasons for the differing legal treatment of domestic and international terrorism in the United States.
Terroristic syndicalism, without conspiracy or action, is not illegal. However, businesses should expect to face an increased number of Antifa- and riot-related legal process.
Because of this, domestic terrorism is not a separate category of crime, as it would be in, say, England and Wales – domestic terrorism is the commission of crimes which can be committed in a non-political fashion, like murder, battery, or arson, except committed with a political motive. The “domestic terrorist” designation is therefore best viewed as an instruction to local joint terrorism task forces, or JTTFs, to prioritize enforcement action against certain militant groups for violation of existing criminal laws, as we are constitutionally barred from considering political motives on domestic citizens (with certain exceptions for bias crimes).
Brandenburg has been the standard American courts apply to extreme political speech for over 50 years. Without going into too much detail, in Brandenburg, the defendant, a Klan member, hinted that taking revenge on the institutions of American government might be necessary if [insert the usual reasons].
He was arrested for criminal syndicalism, which basically is legalese for advocacy of terrorism. Convicted at first instance, with the conviction affirmed on appeal, the United States Supreme Court overturned the conviction and created a two-part test, the Brandenburg test, to determine when speech that advocates in favor of violence becomes unlawful. It wrote:
“The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.”
Two parts: (a) directed to inciting imminent lawless action and (b) likely to produce it.
That’s a high bar. Saying “Burn it all down” on Twitter doesn’t meet it. Writing “meet at Lafayette Square at 8:00 PM next Thursday to set a building on fire” in your journal which you show to nobody else doesn’t meet it either. Saying “meet at Lafayette Square in ten minutes to set a building on fire”, if indeed you are near Lafayette Square, probably meets the bar. Saying “throw a brick at that policeman” also meets the bar and will be unlawful.
Which brings us to Antifa. Antifa is a loosely-formed anticapitalist movement. Its precursor was founded in Germany at the end of the Weimar period, during Hitler’s rise to power. The original movement was crushed and, as we know, that story did not end well.
The name and symbolism of the original group has since been appropriated by a variety of different groups at different times. The current American version of the movement is one of these imitators. Per the Anti-Defamation League:
These violent counter-protesters are often part of “antifa” (short for “antifascist”), a loose collection of groups, networks and individuals who believe in active, aggressive opposition to far right-wing movements. Their ideology is rooted in the assumption that the Nazi party would never have been able to come to power in Germany if people had more aggressively fought them in the streets in the 1920s and 30s….
Antifa have expanded their definition of fascist/fascism to include not just white supremacists and other extremists, but also many conservatives and supporters of President Trump. In Berkeley, for example, some antifa were captured on video harassing Trump supporters with no known extremist connections.
Antifa is not a unified group; it is loose collection of local/regional groups and individuals. Their presence at a protest is intended to intimidate and dissuade racists, but the use of violent measures by some antifa against their adversaries can create a vicious, self-defeating cycle of attacks, counter-attacks and blame. This is why most established civil rights organizations criticize antifa tactics as dangerous and counterproductive.
What we have with these riots are two components: an ideology advocating violence against broad swathes of the U.S. population (if Trump supporters are counted, 63 million Americans); and individuals who are willing to carry out that ideology in the form of direct action in the streets. The first of these things, generally speaking, is legal; the second, generally speaking, is not.
Why Antifa and other violent elements of American society have decided to do what they did at this time is not presently known. What businesses need to know is that, in least in my assessment, Covid-19 has pulled back the curtain on a widespread, nihilist radical insurrectionist ideology adhered to by thousands of American citizens who, until this week, were not a priority for the Department of Justice.
Renewed compliance priorities.
What I suspect we will find as the DOJ’s investigation into this matter continues is that Antifa – as an ideology – is not a de novo movement but rather is a rebranding of prior, legally compliant movements on the left like the American Communist Party. Accordingly it is likely subscribed to by a significant but small percentage of the U.S. population on an informal basis.
What is likely to follow these riots is a domestic intelligence-gathering mission and campaign of criminal prosecution the likes of which has not been seen since COINTELPRO. To the extent that the political temperature rises or there is additional factionalism in the run-up to the election, it is probable that companies may need to be aware of numerous types of violent ideological users on their platforms.
Companies of all sizes need to adopt a strategy for dealing with law enforcement as these investigations proceed so they can provide timely and accurate responses to law enforcement officers who are doing the important work of keeping America safe.
The following issues are likely to be foremost in internet companies’ legal compliance after the riots are over.
1) For non-financial communications, Section 230 of the Communications Decency Act gives businesses considerable legal air cover regarding terrorist-related content on their sites.
Section 230 of the Communications Decency Act was in the news last week when the President called for its repeal. I explain what Section 230 is in this blog post and explain why repeal or reform as suggested by the Congressional GOP won’t work in this blog post. See also this blog post on Open Access Publishing Platforms and Unlawful Threats.
Section 230, in a line, is a rule which basically says that any company that sets up a website that allows other people to speak is setting up a digital soapbox where other people can stand on it and use it to communicate, but the person who laid the soapbox on the commons won’t be liable for what they say (subject to certain statutory limitations).
The Section 230 immunity is generally thought to apply to terroristic content on a website. So, if a terrorist uses Facebook to communicate, but Facebook is just providing the soapbox but isn’t contributing to the speech, Facebook will not, generally speaking, be liable for the terrorist content, even if Facebook knows about it and even if Facebook chooses not to remove it. See Force v. Facebook, Inc., 934 F.3d 53 (2019).
This does not mean that companies should ignore terrorist content. Far from it; it is a good business decision to be aware of terrorist content and where possible to either interdict it, report it, or use a company’s terms of service to deny use of the network to terrorist users.
2) Financial communications
Terrorism compliance used to be a mostly foreign affair. Following the Trump Administration’s Antifa designation in an election year, this is no longer true. Surveillance will need to keep current with the situation on the ground to ensure that payment systems and banking systems are not used to finance violent insurrection. BSA compliance will need to acquire a degree of awareness of the current domestic U.S. political situation that it may not have deemed necessary prior to the DOJ’s designation of Antifa activities as domestic terrorism.
3) Expect a signficant uptick in Stored Communications Act disclosures.
Early-stage internet businesses which are not accustomed to receiving search warrants and subpoenas should prepare to begin receiving them. Generally this means a single, standalone e-mail inbox or web portal should be provided for law enforcement to contact a general counsel-level officer of the company or a direct report of the GC with document preservation orders, formal legal process such as subpoenas, 2703(d) orders and search warrants, or requests for emergency disclosure.
Disclosure of company data to law enforcement officials is controlled by the Stored Communications Act.
In the United States, companies are not at liberty to simply act as a data fire hose to the government. Congress requires, in keeping with the spirit if not the letter of the Fourth Amendment, that a modicum of legal process be followed before third party records on file with U.S. internet companies is provided to law enforcement officials. Generally speaking there are four types of disclosure. The first is a non-emergency grand jury or administrative subpoena in which subscriber data is requested; things like login records, IP logs, and user e-mail addresses.
The second is something known as a 2703(d) order, which can either request data and metadata or can request the content of communications data with disclosure to the subject of the investigation (although this notice can be temporarily waived with a nondisclosure order).
The third type of data request companies will get under the Stored Communications Act is a search warrant. Search warrants under the Stored Communications Act, unlike search warrants for the home, do not tend to be particularized and indeed can be incredibly broad (“provide all messages ever sent”). Businesses should be alert to requests in search warrants that actually ask for records of the business rather than records pertaining to the user, e.g. password salts, and push back on those requests where appropriate with a short note to the U.S. Attorney.
The fourth type of data request is an emergency data request when there is an emergency involving danger to life or of grievous bodily harm. Although compliance with these requests is optional, it is usually advisable to respond to these quickly. If you refuse, the FBI or other requesting agency likely has information which is sufficient to sustain a search warrant or a subpoena and they won’t be terribly pleased if they’ve told you it’s an emergency but you make them get the order. Law enforcement officers I have dealt with are pretty good about not overusing emergency requests, presumably lest they be viewed as having cried wolf.
These data requests will be extensive and may be frequent, particularly if your app or service is used by a hip millennial demographic that intersects with individuals who participated in the riots. Businesses will need to trade off between security on the one hand and ease of access to data on the other; user data should not, for example, be accessible by an administrator working remote from the surface web.
4) Employment manuals require clarity on the scope of permitted political activity outside of the office, and companies should examine whether to adopt a position of political neutrality on all issues not directly pertinent to the business, to avoid embarrassment.
As we move into a new, strange, and possibly dangerous phase in American history, what is clear is that businesses which hitherto were able to comfortably pretend that their employees all read the H.R. manual, enjoy the teambuilding exercises and feign attentiveness watching the diversity training videos may harbor extreme ideologies which hold the potential to create significant embarrassment for the business.
This weekend I was shocked to learn that a furloughed associate at Pryor Cashman – a well-respected midlaw law firm in New York – and another New York-admitted attorney were charged this weekend with setting an NYPD van on fire in Brooklyn. Attorneys in New York are sworn to uphold the Constitution of the United States and are subject to automatic disbarment if convicted of a felony. We are supposed to uphold the rule of law and the administration of justice. Firebombing a police van is about the greatest betrayal of those professional vows I can imagine.
Participating in a riot is surely grounds for summary termination and disbarment. In combination with the fact that these riots are so large and widespread that they’ve put American security forces on the defensive, this suggests that extreme radical views are held in a very widespread way in unusual places that, to date, the corporate media have refused, or been unable, to investigate.
After the 2016 election, corporate participation in partisan politics extended to the highest levels of business in many household names like Google, Facebook, and Citigroup. Many companies have chosen to express support for the protestors.
Support for the protestors, such as it was, is eroding quickly in affected areas as property damage is incurred and the body count rises. I should imagine that, as the investigations around these riots continue, this means that there is the potential for significant embarrassment if it is discovered that employees of these companies and company resources were devoted towards civil unrest.
Given how destructive the protests have become (St. John’s Church, around the corner from my place in D.C., is burning down as I write this blog post), I cannot help but wonder whether corporate political neutrality – the way our parents did business – will see a resurgence in the wake of this crisis.
Companies should immediately revisit their policy manuals and arrive at a view on whether partisan political activity outside of two-party politics (service on town boards and the like) will be permitted outside of work hours.