Terrorists create fear. They do this by disrupting the fiction that life is safe and routine. But what exactly defines a terrorist? It might come as a surprise that while terrorism has been outlawed by international law since the 1930s, there has never been a consensus as to what terrorism actually means. The United Nations has some principles by which terrorism is outlawed under international agreement, but sessions in the 1970s and ’80s broke down due to disagreements as to who or which organizations to classify as terrorist.
In the classic iteration of the era, it was expressed that one man’s terrorist is another man’s freedom fighter. In the United States, “terrorism” is classified more specifically as “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents,” and is punishable by federal law. But still, while we have a working understanding of what a terrorist is, federal law leaves a great deal of ambiguity regarding what type of violence is politically motivated, or even exactly what the nature of such violence incorporates. Must it include a physical act, or can speech or expression be included? What about expression in advocacy of violence? Do the intentions of the actor matter? Should it make a difference if an individual or group feels threatened, even if the speaker did not intend or advocate for harm to that individual or group?
There is another current perspective, which says that terrorism is politics and targeting terrorism is political activism. That perspective was certainly reinforced by the decision of the San Francisco city council in its recent proclamation labeling the National Rifle Association “a domestic terrorist organization.”
The proclamation might have passed as simple political rhetoric by a notoriously partisan council, except the NRA, ironically, felt like they were in the proverbial crosshairs and fought back, making San Francisco’s action a federal case.
The NRA sued the city of San Francisco. But interestingly, the grounds of the suit were not defamation, as might be expected, but rather First Amendment. Here, the NRA is not seeking a judicial battle on the definition of a terrorist—which, if it has not been fully defined in 25 years might very well be a matter of opinion, by definition protected by the First Amendment’s guarantee of free expression. Rather, the organization argued that they are harmed because labeling the NRA a terrorist group “chills” their ability to communicate their message as to why they believe that the guarantee of personal protection by the advocacy of personal armaments are important.
The NRA said that agencies, businesses and companies in San Francisco will not want to deal with a “terrorist” organization—which will harm their ability to speak, advocate or raise money on behalf of a constitutionally protected right within the city.
The argument targeted San Francisco, not for the city council’s statement, which it calls “a gratuitous insult,” but for the effect that it had in picking favored speech over non-favored speech based upon political considerations.
The effect of this distinction is that it changes the emphasis of the lawsuit to the question of whether the government is empowered to make political proclamations that have nothing directly to do with legislating in its jurisdiction
Whether or not we agree with the agenda of the NRA, it is an important principle regarding how much power we want to concede to a legislative body beyond what is granted in the Constitution.
It could have practical terms that hit close to home. There is a significant agenda in favor of the Boycott, Divestment, Sanctions (BDS) movement within the Democratic Party—including several of the leading presidential candidates. If terrorism is subject to a shifting definition depending on political advocacy, then any opponent of a political majority can be labeled a terrorist.
The First Amendment is meant as a sweeping guarantee of free expression across a spectrum of advocacy regardless of politics. That is essentially the NRA’s argument. Legislative bodies are free to enact opinions and policy. But they cannot favor one political position over another so that people who hold minority opinions are ostracized.
The Constitution is built to not only protect, but guarantee, the ability of minorities to exist within our society. The conundrum is that it needs to do so within a democratic society that promotes majority rule. However, even where there is a majority there are basic bedrock principles, one of which is freedom of expression. When a government takes that away by labeling a political opinion “terrorism,” we should all take pause to consider whether we want the government making those designations relating not to conduct, but to belief.
We may or may not agree with the NRA’s position regarding the right to bear arms or even gun ownership. But today, a city’s legislature can label that right “terrorism.” What is to stop them from labeling other principles, including those of our traditions such as the obligations of kashrut or the need for brit milah, terrorism tomorrow?
It’s not academic. We already have one presidential candidate calling circumcision barbaric. It is only a small step from the political labeling of a religious practice as barbarism to finding it terrorist.
Stephen R. Loeb heads the Law Office of Stephen R. Loeb, a civil practice in New Jersey and New York. He can be reached at [email protected].
