DEMOCRACY WATCHThe Trump Administration’s Attack on First Amendment Rights Is Enabled by Fourth Amendment Shortcomings

A couple of weeks ago, I warned that excessive limits on what constitutes a search or seizure under the Fourth Amendment endanger the freedom of association under the First Amendment. A new executive order issued by President Trump on September 26 confirms this. 

The order begins by alleging the existence of “sophisticated, organized campaigns of targeted intimidation, radicalization, threats, and violence designed to silence opposing speech, limit political activity, change or direct policy outcomes, and prevent the functioning of a democratic society.” These campaigns reflect “anti-fascist” ideology, marked by “anti-Americanism, anti-capitalism, and anti-Christianity; support for the overthrow of the United States Government; extremism on migration, race, and gender; and hostility towards those who hold traditional American views on family, religion, and morality.”

The order directs joint terrorism task forces to “coordinate and supervise a comprehensive national strategy to investigate, prosecute, and disrupt entities and individuals engaged in acts of political violence and intimidation.” Task forces shall “investigate” efforts that include “isolating and dehumanizing specific targets to justify murder or other violent action against them,” taking place through “anonymous chat forums, in-person meetings, social media, and even educational institutions.” The order requires an investigation into donors and employees of groups that “are responsible for, sponsor, or otherwise aid and abet” the activities described above. Anti-terrorism efforts will prioritize “organized doxing campaigns, swatting, rioting, looting, trespass, assault, destruction of property, threats of violence, and civil disorder.”

The order is nakedly aggressive: “Through this comprehensive strategy, law enforcement will disband and uproot networks, entities, and organizations that promote organized violence, violent intimidation, conspiracies against rights, and other efforts to disrupt the functioning of a democratic society.” (As I’ve noted previously, laws against conspiracies, organized criminal activity, and the like are so overbroad that what violates them often depends on the eye of the beholder.)

My colleague Walter Olson has identified how the new order targets speech and association that are protected by the First Amendment. “Isolating and dehumanizing” people through critical speech, accurately reporting the names of immigration agents (which some Trump allies consider to be terroristic “doxing”), talking in ways that the government might try to characterize as “justifying” crimes—all of these activities are usually constitutionally protected.