Jun 2, 2020 12:35 PM

Trump's Antifa Obsession Is an Unconstitutional Distraction

The president says the US will designate antifa a terrorist organization. Can he do that? Probably not.

The urge to violently—and peacefully—protest has gripped the United States, and President Trump thinks something called antifa is to blame. On Sunday, after days of demonstrations against racism and police brutality sparked by the death of George Floyd, an unarmed black man who died at the hands of police in Minneapolis, Minnesota, Trump cast blame in a tweet: "The United States of America will be designating ANTIFA as a Terrorist Organization.” The statement drew immediate criticism from activists and Constitutional law experts alike.

The word antifa is a contraction of anti-fascist, a broad ideology that few people left of Mussolini actually oppose. The antifa that Trump is talking about is a vague movement within that ideology, a loosely affiliated cohort of far-left activists best known for turning up to white nationalist demonstrations in all black, “punching Nazis,” and sometimes destroying property and creating mayhem. It’s not the first time Trump and other right-wing figures, like Senator Ted Cruz of Texas, have singled out antifa for criticism and claims of terrorism. The idea of antifa has become a sort of far-left bogeyman, a masked figure lighting trash cans on fire. Somebody to point to when progressives ask why the government hasn’t taken stronger action against white nationalists toting AR-15s and tiki torches.

Let’s back up. The first thing to note is that Trump cannot declare antifa a terrorist group, because the US has no domestic terrorism law and antifa has no international component. Also, antifa isn’t an organization, let alone a terrorist one. While people identifying as antifa may have participated in demonstrations across the country over the past few days, including ones that grew violent, there is no central organization or leadership. Moreover, if the black bloc is terroristic, then so is the aftermath of some major sporting events. Antifa checks virtually none of the boxes necessary for the designation Trump wants to give them.

Even if the government did designate antifa as a domestic terrorist organization, that wouldn’t have the impact any reasonable person would be looking for: discouraging the growth and activity of the people in question. “I don’t think it would have any effect on the group, if it were a group,” says Phyllis Gerstenfeld, who studies online extremism and criminology at Cal State University Stanislaus. “What we’ve seen on the far right is, when attempts are made to sue and organize against them, they splinter and intentionally go without leaders. Antifa are already doing that.”

Attempting to stigmatize and criminalize anti-fascists would also be unconstitutional. “It’s utterly uncontroversial that, if the First Amendment means anything, it means the government can’t prohibit the expression of political opinion,” says Neil Richards, an expert on digital free expression and privacy at the Washington University in St. Louis School of Law. “It’s a crime to burn down a police station, but it cannot be a crime to be opposed to authoritarianism or associate with people who do.” It seems baffling that President Trump would even make such a legally unsupportable statement. At least, initially.

Branding what is in reality a diverse and spontaneous wave of protests as the work of antifa expands the moniker to include, well, anyone. Denouncing this incomprehensibly broad new “antifa” as terrorists sets all protesters up to be targets of law enforcement actions and surveillance, which US attorney general William Barr’s supportive statement emphasizes. “It’s more troubling to see attorney general Barr talking about it than Trump, because he has the authority to be able to authorize those investigations,” says Stanislav Vysotsky, a scholar of fascist and antifascist groups at the University of Wisconsin–Whitewater. “You’re going to see greater surveillance of online activity of anybody left of fascism. We saw this with the immediate era after the passing of the Patriot Act. Groups of Quakers and pacifists were being monitored by the FBI.” (If you are thinking of joining the protests, WIRED has advice on how to do so in a way that will protect your privacy.)

Governance via tweet also works on Trump’s base, even without the legal means to support his statements. Some of the president’s most ardent supporters have been convinced that antifa (and other left-wing figureheads) are a threat to their beliefs and way of life for years. Vysotsky thinks presidential sanction—legal or not—is all they need. “[His statement] will mobilize the far right. Fascists are being told the state is behind them, that if you engage in violence against so-called anti-fascists, that state is with you,” he says. “That generates probably a more immediate threat and danger.”

It’s this kind of potential incitement of violence that has made many critical of the ways social media companies handle President Trump’s inflammatory and factually incorrect statements online. Twitter fact-checked Trump’s tweets last week, but efforts are late and imperfect. How tech companies enforce their terms of service, and how that enforcement affects discourse, points to another risk entirely. Suppose, in an effort to cozy up to the administration, Twitter and Facebook built concerns about “antifa terrorism” into their community standards. Dissent against militarized and racist policing could be as gone as porn on Tumblr. “That’s the problem with governance via tweet and censorship via community standard,” Richards says. “A handful of unelected tech executives exert meaningful power in how debate happens in our society and around the world.” According to Richards, there would be little legal recourse available if something like that were to happen. Fortunately, it’s highly unlikely.

Still, any impact of President Trump’s vain attempt to designate antifa as a terrorist organization—whether it’s surveillance, violence, or censorship—is deeply unfortunate. All the more so because the focus on antifa is a distraction anyway. “If we’re talking about windows getting smashed, we’re not talking about cops smashing people. This is a way of trying to peel off mainstream support for these kinds of movements by painting them as radical,” says Vysotsky. “Which then, of course, wipes away any of the authentic emotion and authentic structural issues that are at the core of the protests. That’s ultimately the goal.” Some policies don’t need to be legal—or even real—to succeed.