December 7, 2021

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Trump’s Antifa Obsession Is an Unconstitutional Distraction

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.

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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.)