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Democracy under attack: Time to condemn political violence

AP Photo/Jose Luis Magana, File
FILE – Rioters loyal to President Donald Trump rally at the U.S. Capitol in Washington on Jan. 6, 2021. A new poll shows that many Americans remain pessimistic about the state of their democracy and the way elected officials are chosen. The results of the Associated Press-NORC Center for Public Affairs Research survey come nearly two years after a divisive presidential election spurred false claims of widespread fraud and a violent attack on the U.S. Capitol.

Some Americans seem motivated today by dangerous misconception: One is former President Donald Trump’s “big lie” about the 2020 election. Another misconception is that the right to free speech incudes political intimidation and death threats — it doesn’t.

Leaders of both political parties, as well as cultural and religious leaders, should point that out and condemn the grassroots insurrection that’s underway right now.

To clear up confusion about what rights the First Amendment guarantees, Georgetown University Law has issued the following guidance:

  • The First Amendment does not protect violent or unlawful conduct, even if the person engaging in it intends to express an idea. State criminal laws penalize threats to injure, kill or stalk another person, including repeated harassment or threats that would cause a reasonable person to feel terrorized, frightened, or intimidated. Stalking is behavior that causes another person to have a reasonable fear of death, serious bodily injury or substantial emotional distress.
  • It is a federal felony to communicate a threat to injure or kidnap another person online, by phone, mail or other interstate channels.
  • The First Amendment does not protect speech that incites imminent violence or lawlessness. (The meaning of “imminent violence” may be confusing, but according to a 2003 ruling in Virginia v. Black, Supreme Court Justice Sandra Day O’Connor pointed out that states can regulate speech “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to an individual or particular group of individuals.” She noted the speaker need not intend to carry out the threat; the threat itself creates fear that disrupts lives.)
  • Crimes of violence intended to intimidate and coerce are considered terrorism under federal law and the laws of many states. “Terroristic threats” generally are threats to commit a crime of violence with the purpose of, or in reckless disregard of, terrorizing another person or causing public panic, fear or serious public inconvenience.
  • The Second Amendment protects an individual right to bear arms for self-defense, but it does not cover private paramilitary organizations. Collective armed action by private paramilitary organizations is unauthorized in every state and violates criminal laws in many states.

Current laws also forbid interfering with citizens’ right to vote, engaging in intimidating behavior at polling places, or confronting voters while wearing military-style or official-looking uniforms. It is unlawful to display firearms in threatening ways; follow voters to, from or into voting places; write down their license plate numbers, or aggressively question their qualifications to vote.

When threats are terrorism

For a special report that aired on Oct. 30, CNN filmed people yelling threats of violence at meetings of local government and election officials. “I am going to come after each one of you personally,” one person shouts.

“You will get the justice that’s coming to you,” yells another.

Others call out, “Time to dust off the old guillotine,” along with “We know who your family is,” and “You know your home address is on the internet, don’t you?”

One militant told CNN, “You don’t vote your way out of socialism. Once it takes root, the only way to eradicate it is to fight with arms, to have a violent, violent confrontation, to have blood in the streets.”

“I’ve been in combat, and I never want to go back again,” he added. “But I’m telling you what, I will to save this country. If it has to be against our own citizens, it will happen. And there’s a million people like me, and you won’t stop us.”

CNN also interviewed election workers who have begun wearing body armor and carrying guns.

The slippery slope

Recently a home intruder violently attacked House Speaker Nancy Pelosi’s husband, Paul Pelosi, according to police. Just days before, scientific American published a review of research about political violence in America. It cites testimony by Rachel Kleinfeld, a senior fellow at the Carnegie Endowment for International Peace, before the House Select Committee to Investigate the January 6th Attack on the United States Capitol. She noted that support for political violence has doubled among Republicans since 2017, when Trump took office. It also increased among Democrats, but to a lesser extent.

Kleinfeld noted that shortly after the Capitol insurrection,25 percent of Republicans and 17 percent of Democrats felt threats of political violence were justified against the opposite party’s leaders.

Within weeks after Trump lost reelection in 2020, she testified, that his supporters retooled much of his campaign’s online infrastructure to spread misinformation and encourage protests. “The 2020 election season was an inflection point that led to a step-change in acceptance of violence as a political tool, particularly among Republicans,” she said.

Today, threats against members of Congress are 10 times higher than five years ago, Kleinfeld said. In addition, between Trump’s defeat and President Biden’s inauguration, armed protests grew by 47 percent while organized paramilitary groups increased by 96 percent. Violence once dominated by radical fringe groups has gone mainstream, Kleinfeld said, and while it used to be inspired by ideology, it is now motivated by partisanship.

Especially near elections, we can expect more violence in the future “encouraged by politicians for a political purpose,” Kleinfeld told the committee. And she warned that “the damages that this violence itself, and the conspiracies driving it, are causing to our democracy are already substantial and are likely to produce significant democratic decline if not arrested soon.”

“Elites” should speak out

How can we stop the violence? A study by political scientist Robb Willer and his team at Stanford University found that because the public takes cues from “trusted political elites,” efforts to reverse the trend toward violence “should begin at the highest levels of U.S. political discourse.”

So, trusted elites from both political parties and across society should publicly condemn political violence and discredit Trump’s false claims about the 2020 election. Local election officials should display, victims should report, and law agencies should enforce violations of prohibited speech and assembly.

There is one more felony worth mentioning. It prohibits anyone from trying to intentionally “solicit, command, induce, or otherwise endeavor to persuade” another person to engage in a crime of violence against a person or property. The Justice Department should consider whether Trump is violating that law. His stoking of political unrest and alleged violence among supporters did not end on Jan. 6th, 2021 — it continues today.

William S. Becker is co-editor and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” a collection of more than 30 essays by American thought leaders on topics such as the Supreme Court’s perceived legitimacy. Becker has served in several state and federal government roles, including executive assistant to the attorney general of Wisconsin. He is currently executive director of the Presidential Climate Action Project (PCAP), a nonpartisan climate policy think tank unaffiliated with the White House.

Tags 2020 election 2022 midterm elections Democracy Donald Trump Donald Trump political violence Politics Politics of the United States Sandra Day O'Connor United States

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