Trump’s Antifa threat is a threat to free speech

President Donald Trump tweeted that the executive branch will designate Antifa as a “terrorist organisation,” apparently in an attempt to pin blame for the weekend’s violent protests on the loose collection of far-left activists.
The president’s announcement was characteristically unclear. Federal law says that if the Secretary of State designates a group as a foreign terrorist organisation, then materially supporting that organisation becomes a very serious federal crime. There is no comparable domestic terrorism designation under existing law.
Setting aside the important factual question of whether groups of anti-fascist protestors are actually to blame for the violence, let’s look at whether Trump can “designate” them as terrorists. If Trump’s “designation” is purely symbolic, the Constitution doesn’t come into it. Even without congressional authorisation, the president can say what he likes — including inventing a designation that carries no legal consequences.
However, if the Trump administration were to designate Antifa as a foreign terrorist organisation, and the designation survived judicial review, then joining the group, funding it or coordinating with the organisation in any way could be punished with harsh jail terms. That’s what already happens to anyone, including US citizens living in the United States, found to
have materially supported designated foreign terrorist organisations.
Here’s where the Constitution comes into the picture. Commentators have been quick to assert that it would be unconstitutional to apply the material support statutes to a domestic group. That’s roughly true, and it’s certainly not false — but it is a significant oversimplification.
First of all, the federal designation statute, section 190 of the Immigration and Naturalisation Act, doesn’t define what counts as “foreign.” All it requires in connection with foreignness is for the Secretary of State to find
that “the organisation
is a foreign organisation.” There is no statement about how many of the group’s members are inside or outside the US.
It is entirely possible that the State Department could develop an administrative record — some of which could be classified — finding that Antifa has a foreign component. Terrorist groups remain designated foreign terrorist organisations under the law even if they have lots of domestic members.
It is also entirely possible that the US Court of Appeals for the DC Circuit, which has authority to review the designation, might decide to defer to the State Department with regard to what counts as foreign. So it would be a mistake to rule out the possibility that Trump’s State Department might designate Antifa as a foreign terrorist organisation, thus triggering the material support statute.
Second, the Supreme Court has never expressly held that it would be unconstitutional for Congress to pass a law applying the material support statute to a domestic terror organisation. Rather, when the Supreme Court upheld the material support statute in reference to foreign terrorist organisations, it said that it was not addressing the question of whether Congress could do so. As Chief Justice John Roberts put it in writing for the court’s majority in the landmark 2010 case of Holder v Humanitarian Law Project, “We … do not suggest that Congress could extend the same prohibition on material support at issue here to domestic organisations.” That counts as a hint that such a law might be unconstitutional if applied domestically, but a hint is not the same as a holding.
Third, it’s crucial to
understand that the Humanitarian Law Project precedent gives tremendous latitude to the government in restricting free speech — including speech by Americans on US soil that does not threaten or incite imminent lawless action. In that case, the Supreme Court held that peaceful speech by Americans in the US could constitutionally be punished as material support for terrorism if it was made in “coordination” with the foreign terrorist organisation. The non-governmental organisations in that case wanted to advise designated organisations like the Tamil Tigers and the Kurdish PKK in non-violent human rights advocacy. The Supreme Court essentially held that they couldn’t do so, because even advising such groups on how to act lawfully and peacefully amounted to material support of designated terror groups.
If this sounds astonishing to you, that’s because it should. The Humanitarian Law Project case represented a radical deviation from the free-speech standard that the Supreme Court announced in 1969 in the famous case of Brandenburg v Ohio. There, the court had held that under the First Amendment the government may not limit “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The Humanitarian Law Project decision said that speech defined as material support of terrorism could be punished criminally even if it was not directed to inciting imminent lawless action and was not likely to incite it.

— Bloomberg

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to US Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”