Prohibit the actions of extremism, but bear with the rhetoric

The Biden administration has made clear its priority to confront domestic extremism. Such initiatives sound great to Biden’s supporters, and the establishment media cheer on efforts to confront unwashed riffraff. Waving the bloody shirt of extremism has been used as a political tactic for decades. Defining exactly who the extremists are and how to stifle them, however, while maintaining any respect for First Amendment freedoms, is a problem for the Biden White House.

Suburban moms concerned about what is happening in their kids’ schools hardly rate as threats to stockpile explosives or take down the government. Yet, the Biden Department of Justice and the FBI are mobilizing to clamp down on parents who are challenging school administrators and teachers. Attorney General Merrick Garland wants to stop “harassment, intimidation and threats of violence” against school personnel. Missing from the Garland memorandum is any clear definition of what specific behaviors are included in this wide-ranging effort to classify parents as enemies of the state.

The initiative to chill parents who want to hold school officials accountable is the latest Biden administration crackdown on citizen dissent. The Department of Homeland Security’s recent bulletin about the overall heightened threat environment in the United States provides extensive concern about domestic threats. Earlier in the summer, the White House issued a lengthy report called the “National Strategy for Countering Domestic Terrorism.”

Particularly named are “anti-government/anti-authority violent extremists” and what are called RMVEs, “racially-or-ethnically-motivated violent extremists.” Included as potential threats are people opposed to COVID restrictions and people with “theories on perceived election fraud.”

Garland’s statement accompanying the White House report acknowledged the importance of respecting citizens’ First Amendment rights. He knows he has to say that as rhetorical cover. Threading this needle to protect expression is not easy, however, when the hammer of federal enforcement is being swung not only at people who are planning or inciting violence but also at people who only have anti-government sentiment.

The key for the government in pursuing any “extremist” is whether particular individuals or groups are engaging in criminal violence as prohibited by law. No doubt there are real domestic extremists who have engaged in or are making specific plans to commit acts of violence. These people are rightful targets for law enforcement and must be prevented from inciting or engaging in violence.

Being angry or holding extremist opinions is not a matter for law enforcement. The expression of anger or radical ideas is well protected within the First Amendment. A controversial Supreme Court decision in 1949 noted the First Amendment protects angry speech. Justice William Douglas wrote in Terminello v. Chicago that speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

Disseminating questionable or even flat-out false information in the public sphere is also constitutionally protected. A guy blogging in his basement that the moon is made of green cheese might be crazy, but is still constitutionally protected. 

It is only when thoughts, ideas and expressions are converted into physical action that a line gets crossed. Legendary Yale Law School professor Thomas Emerson articulated a generation ago his expression-action theory that advocated protecting expression from government interference while allowing government curtailment only when specific action is engaged. The Biden White House would be wise to study Emerson’s essays.

Equating angry comments at school board meetings to threats or intimidation is a reckless reach, absent any particular accompanying physical action. It’s doubtful the DOJ would be issuing directives if parents were hectoring school boards to demand more CRT courses or to adopt more sexually graphic books for the curriculum. Garland appears to be on a content-based witch hunt, with obvious First Amendment implications. 

“Extremist” rhetoric may have questionable value in national policy debates, but the government can’t be deciding which expressions need to be stifled. That approach should apply to all stripes of anti-government expression, from moms of school kids to Antifa. Trying to stifle or force extremist rhetoric underground doesn’t make it go away. Censorship ultimately doesn’t work in societies without enforcement clubs behind it.

Neither government nor self-appointed arbiters on social media can fairly referee controversial messaging — because they are both self-interested.

Pushing for conformity of thought and then calling it unity can’t work in free societies. The First Amendment was created with the confidence that robust debate would lead to rational conclusions. The nation can’t give up on that noble notion without plunging itself into chaos.

Jeffrey McCall is a media critic and professor of communication at DePauw University. He has worked as a radio news director, a newspaper reporter and as a political media consultant. Follow him on Twitter @Prof_McCall.