OPINION | Should protesters be classified as terrorists?

More than 200 years ago, France descended into a period known as “la terreur,” or the reign of terror. Revolutionary Bertrand Barère declared at the infamous September 1793 convention, “Let’s make terror the order of the day!”

A couple centuries later, we appear to be on the brink of achieving Barère’s dream to an extent that even he could not imagine. If you read the comments from the left and the right in the last two weeks, it would seem that most everyone can be defined as a terrorist in this age of rage. There are now calls from both groups demonstrating and counter-demonstrating in Charlottesville to be declared domestic terrorists. The question is what will be left of free speech if terrorism becomes merely a type of extreme speech.

The Illinois legislature is considering a measure by state Sen. Don Harmon, a Democrat, that calls on the government to “pursue the criminal elements of these domestic terrorist organizations in the same manner and with the same fervor used to protect the United States from other manifestations of terrorism.” Harmon insists that the measure takes a “stand in total opposition to the hatred, bigotry and violence displayed by these groups.”

Yet, the racist protesters in Virginia had a permit to march and Charlottesville Police Chief Al Thomas denounced the violence on both sides. That raises the question of whether the presence of a “criminal element” on either side is enough (when combined with extreme views) to meet a new evolving definition of terrorism. Some have insisted that Nazi rallies are inherently threatening to public safety and terrorizing to various groups. The clear message is that politicians want these groups not simply denounced for hate speech but declared actual terrorists.

{mosads}Conversely, over 100,000 people have signed a petition calling on the Trump administration to formally recognize the Antifa movement as a terrorist organization. The petition states, “Terrorism is defined as ‘the use of violence and intimidation in pursuit of political aims.’ This definition is the same definition used to declare ISIS and other groups, as terrorist organizations. Antifa has earned this title due to its violent actions in multiple cities and their influence in the killings of multiple police officers throughout the United States. It is time for the Pentagon to be consistent in its actions — and just as they rightfully declared ISIS a terror group, they must declare Antifa a terror group — on the grounds of principle, integrity, morality, and safety.”

A similar movement has called for Black Lives Matters to be declared domestic terrorists for the violence seen at various protests. There is a striking similarity in the rationales for declaring both sides to be terrorists. Neither side is willing to recognize, let alone respect, the right of the other side to free speech regardless of the content of their views. For years, some of us have been warning about a dangerous tide sweeping over Europe as Western countries in the criminalization of speech deemed offensive or insulting while banning whole groups deemed hateful. The West is losing faith, and patience, with free speech.

It has not worked, as history has consistently shown. Germany criminalizes symbols like the swastika or Holocaust denials. Neo-Nazis however continue to flourish and simply slightly altered their symbols and salutes. France, England and other countries routinely prosecute people for expressing views deemed hateful, but both extremism and terrorism continue unabated. The reason is simple. The enforced silence produced by these laws is purely superficial. It does not stop extreme views or change minds, it merely forces it below the surface.

As shown by Europe (and Canada), criminalizing of speech places countries on a slippery slope toward what the Framers feared as the “tyranny of the majority.” It becomes an insatiable and satisfying appetite for those who want to simply silence opposing views. For their part, politicians want to show voters that they feel their anger by declaring unpopular groups “terrorists” or unpopular speech crimes. If you are not with those declaring the other side terrorists, you look like you are not sufficiently appalled or opposed to their views.

The fact is that the two groups protesting in Charlottesville was not the largest convergence of terrorists in history. James Alex Fields is under investigation for possible terrorism in mowing down counter-demonstrators. His actions rather than his values will be the basis for any terrorism charge. Moreover, whether he meets that definition or not will not alter that likely demand for a death sentence for murder.

Like most Americans, I was disgusted by the appearance of torch marching neo-Nazis in the streets of Charlottesville. I was shocked that so many held such hateful views. Those views can clearly intimidate or scare others. However, if that is the standard for terrorism, the difference between a protester and a terrorist is merely how their speech is interpreted by others.

We have had Nazi rallies in this country going back to the 1930s, including the infamous Nazi rally in 1977, which took place after the U.S. Supreme Court supported their right to march. We tolerate such demonstrations, not because their speech has objective value, but rather because free speech as a whole has value. We have refused to limit the right to speech for everyone to combat the few.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

The views expressed by contributors are their own and are not the views of The Hill.