In the days after the Trump indictment in Georgia came down, most of us on the left were celebrating: accountability has come! Justice is on the way! But even then, a few crusty civil libertarians could be heard muttering: "be careful what you wish for." After all—the left-liberal contrarian take went—as much as we might like this one indictment, the legal authority used to secure it is nevertheless dangerously sweeping and over-broad: I am referring to Georgia's sui generis RICO statute.
Then, as if to underline the point, just a few short weeks later the Georgia RICO law was back in the headlines: this time being used to indict more than 60 left-wing activists involved in the "Stop Cop City" protest movement. The event and its timing could not have more vividly illustrated the crusty civil libertarians' warning: this is not a good legal authority, because it allows the criminal actions of a few individuals to become the basis for indicting an entire political movement and ideology.
Now, I have no trouble believing that the Georgia indictment against Trump himself was justly sought and rightly secured. Based even on the events we knew about at the time they were unfolding, during the 2020 election, it seemed clear that Trump was brazenly and corruptly trying to influence a state electoral process. The worrying thing about the RICO statute, however, is that it can use one individual's wrongful deeds to sweep up a much wider range of actors, whose guilt may be considerably more attenuated.
This, it seems clear to me, is what's happening with the sprawling "Stop Cop City" indictment. The lengthy document describes a handful of property crimes and violent acts (including firing on a police officer in one instance and cutting the safety harness of a worker) that are almost certainly chargeable as individual offenses. But it then uses these instances of wrongdoing as a justification to charge 60 participants in a broad social movement as members of a criminal conspiracy.
Troublingly, in this context, the indictment leads off with a long excursus on anarchist philosophy and ideology (it also includes a number of anecdotes about the behavior of the protesters that plainly describe protected first amendment expression, but which are included selectively for purposes of making them seem unsympathetic). Is what is really being charged here an ideology, rather than a crime? At root, is it really anarchism itself that is under indictment?
I find this possibility especially worrisome, in light of political history. Some of the most important test cases for civil liberties in U.S. history have involved the first amendment rights of anarchists, and nearly always the U.S. government has been on the wrong side. This was true whether it was during the early Red Scare of the 1920s, or even before, when some of the great cause célèbres of the American labor movement involved persecuted and wrongfully-convicted anarchist leaders.
American letters testify to some of these dark passages of our history. John Dos Passos, in his Manhattan Transfer, memorably and movingly depicts the deportation of a group of aliens rounded up on accusations of promoting anarchy. Edgar Lee Masters, in one of the most striking poems in his glorious collection of social commentary in verse, the Spoon River Anthology, depicts the printer of a small press, "Carl Hamblin," being tarred and feathered for sticking up for a group of anarchists who were hanged.
One doesn't have to endorse anarchism as a political philosophy—or understand the messianic obsession that some activists seem to have developed with the single police training complex in Atlanta that is at the center of the "Stop Cop City" movement—to recognize that any philosophy as a philosophy is entitled to First Amendment protection. Nor does one have to endorse the tactics and strategy of a specific protest movement to recognize that it is not a crime merely to be a participant in that movement.
As a matter of constitutional law, this all ought to have been clarified long ago. In a landmark case NAACP v. Claiborne Hardware Co., the Supreme Court held that individual violent acts committed by some members of a protest movement do not make the leaders of that movement liable for what were merely expressive acts. If this is true in a civil context, then surely it should be all the more true for criminal liability—which poses an even starker risk of chilling constitutionally-protected speech.
If American courts turn their backs on this ruling, and instead choose to regard a protest movement with anarchist connections or leanings as somehow less worthy of protection, then they will be putting mere property above the rights of conscience. They would thus be justifying all over again the indignant words which Edgar Lee Masters's fictional Carl Hamblin printed, and for which he was attacked: justice in this country will be blindfolded not because she is impartial, but because she is rancid with corruption.
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