Our nation has seen devastating mass acts of violence in recent times. Preventing and addressing this violence is essential to the safety of our communities. We can and must act against hate and violence. We must prosecute violent criminal conduct to the fullest extent of the law. We can and must speak out loudly against bigotry and hateful rhetoric, including white supremacy.

Unfortunately, though HB 1601 seeks to address the scourge of white supremacy, it raises significant constitutional concerns and would entrench in Virginia a framework that has been used at the federal level to target minority communities for discriminatory investigation, surveillance, and prosecution—and make it worse, by creating a new, overly-broad category of “domestic terrorist organizations.”

As an initial matter, it’s important to recognize that the word terrorism is used both rhetorically and legally. In our public discourse, there are deeply problematic political, racial and ideological dimensions as to what gets labeled “terrorism” and what doesn’t. Too often, the word terrorism is applied solely or primarily to Muslims, when, of course, terrorism is not a Muslim phenomenon and extremist violence can come from a variety of sources including white supremacists and others on the far right. In fact, since 9/11, those categorized as white supremacists or holding extreme right-wing, anti-government views killed nearly twice as many people in this country than Muslims.

Saying it seeks to prevent violence, the federal government has used an overly broad definition of “domestic terrorism” wrongly to surveil and investigate Muslim, Arab, Middle Eastern, and South Asian communities as well as animal rights and environmental activists or others with “unpopular” beliefs. That is because federal law defines domestic terrorism as violence intended to intimidate or coerce a civilian population or influence government policy or conduct. In the current climate, those with “unpopular” beliefs who are seeking to influence government policy might include civil rights activists like Black Lives Matter, or the “antifa.”

The language of HB 1601 is more focused than the federal law – it defines domestic terrorism as violence against a person or his property “with the intent of instilling fear or intimidation in the individual against whom the act is perpetrated because of race, religion, national origin, gender, sexual orientation, or disability, or that is committed against such person for the purpose of restraining that person from exercising his rights under the Constitution or laws of this Commonwealth or of the United States.” Nonetheless, it is no less subject to abuse by government authorities, including being used arbitrarily to criminalize direct actions by groups seeking to have their voices heard in opposition to a particular speaker. We therefore have serious concerns about the First Amendment risks that come from government branding groups with unpopular beliefs as terrorist and criminal.

As a society, we need to do a far better job of considering how we think about violence and its causes, both as a rhetorical matter and a legal one.

As we do so, it’s important to keep in mind the very real danger of allowing or encouraging law enforcement to focus on ideologies, theologies, and political movements, rather than interdicting and prosecuting specific criminal conduct. Giving law enforcement the power to decide whose views are “dangerous” or “suspect” is a very dangerous thing to do.

One need only scan the pictures of wanted “domestic terrorists” posted on the FBI’s website (white female/Black Panther, white anti-war activists from the early 70’s, white environmental activists and a whole lot of people of color) to get an understanding of who the government believes poses a threat.

One also need only remember that last August “the FBI warned about a new movement that was violent, growing, and racially motivated. Only it wasn’t white supremacists; it was “black identity extremists.”

As the ACLU commented at the time, “the FBI’s warning was yet another indication that the FBI thinks it can identify security threats by scrutinizing people’s beliefs and speech. In making its assessment, the FBI relied on individuals’ use of social media, including who they associated with, what search terms they used, and what content they liked. But there’s nothing legally wrong with having radical or “extreme” ideas, and evidence shows  the overwhelming majority of people who hold radical beliefs do not engage in or support violence.”

In addition, the U.S. Department of Homeland Security has formally classified the activities of anti-fascist groups (antifa) as ‘domestic terrorist violence’ since early 2016.

It’s the violence on which we must focus. That’s especially true given the devastatingly high number of mass acts of violence in this country. We must look at all of this violence if we want to keep our communities safe.

HB 1601, as proposed, does not provide new or more effective tools to address directly violent criminal conduct. Existing anti-terrorism and racketeering laws in Virginia do that without presenting, as this bill does, serious constitutional issues (First Amendment and due process concerns, among others).

The new law proposed in HB 1601 would, however, empower a government official - the superintendent of the Virginia State Police - to designate a group of as few as three people that has an “identifiable name or identifying sign or symbol” as a “domestic terrorist organization” without the group or its members ever having committed a violent act. Here are some of the problems with that:

  • Law enforcement is not required to notify any such group of the intent to designate them as a “domestic terrorism organization” in advance, and give those wrongly designated any opportunity to correct error before the designation is made. This is a due process violation.

  • The law would deny such a group its First Amendment right to free speech, free association and free exercise, because once designated as a terrorist group it would be a crime for anyone to offer it any “material support,” such as property, services, assistance or advice. In this respect, the new law would go even further than the federal framework, which has been used to discriminate against communities of color or those with unpopular beliefs and—and create criminal repercussions.

The bottom line is experience has proven that once we give the government the right to label people and organizations as criminal based on their beliefs and speech, the end result is almost always a list of the powerless constructed by the powerful for their own purposes. This is why we cannot support HB 1601.

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