Criminalize threats to public officials

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Just as 9/11 led to new, tough measures against foreign terrorists, the Jan. 6 insurrection should lead to changes in law to curb domestic terrorists.

For starters, all threats of violence against elected officials, former elected officials, election managers and all others in public service, and their family members, should be prosecuted. In some cases, when investigations show that the perpetrator is not part of a group promoting violence, has not previously participated in violent demonstrations and otherwise has no record of violence, the offender may merely be subjected to a warning and a police record. Threats by those who have demonstrated a propensity to violence may be punished more severely. But no such threats should be ignored.

One may wonder why authorities often do not prosecute those who drive elected officials to hide in hotels, crash in their friends’ homes or even relocate, and to fear that expressing themselves will lead to harm to themselves and their families. The reason is a great ambiguity in the law. The details are complex, but, essentially, the line that separates free speech from criminal activity is particularly unclear in this case.

In United States v. Kelner (2d Cir. 1976), the U.S. Court of Appeals for the Second Circuit stated that a threat is a crime only if “on its face and in the circumstances in which it is made [it] is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” A mouthful. In a separate opinion agreeing with the Court’s decision to deny certiorari in the case Perez v. Florida (2017), Justice Sonia Sotomayor commented that it is still incumbent upon the Court to “decide precisely what level of intent suffices” to turn a threat from protected First Amendment speech into a criminal act, a decision the Court has thus far sidestepped in its rulings. And then there are a number of state statutes that differ from one jurisdiction to another.

In the wake of Jan. 6, Congress should pass a law that any expression of a violent threat is a crime, although the severity of the punishment may be graded based on circumstances of the kind I’ve outlined. Meanwhile, prosecutors should file cases against people who threaten to kill or harm in order to provide opportunities for judges to set stronger precedents.

There are many who lump together those who advocate violence with those who promote hatred and conspiracy theories, based on the idea that the latter types of speech fertilize the grounds in which violence grows. But only a small fraction of those who make such expressions also threaten violence. We cannot, should not and need not criminalize such large categories of speech in order to face the insurrection. We should isolate the violent elements from the hate mongers, dealing with the latter through educational drives, which should not be limited to school but should encompass citizen education as well as civil engagement, such as reaching out to people we differ with in civil dialogues and community projects.

Separating those who advocate violence from those who “merely” believe in various conspiracy theories and espouse hate carries a political bonus. It will drive a wedge in the populist camp of Trumpists, making it more difficult for the next presidential candidate who seeks to imitate Trump – already a long list – to win and subject the nation to four more catastrophic years. In contrast, treating all who have the facts upside down the same way we treat the violent ones will serve to solidify the Trump base.

Media reports suggest that the insurrectionists have been emboldened by the invasion of the Capitol. If many of them find themselves in the courts, defending themselves against charges that they posed violent threats, it will cool the ardor. This alone justifies more clearly criminalizing threats of violence before they are carried out.

Amitai Etzioni is a professor of international affairs at The George Washington University. A short video, “The Making of the Peacenik,” offers a very brief summary of his work on curbing violence.

Tags Capitol attack Far-right politics in the United States political violence Right-wing populism in the United States Sonia Sotomayor U.S. Supreme Court

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