Domestic violent extremism (DVE) is an enigma in 21st century society. On the one hand, there are the traditional historical suspects such as nihilistic terrorists, anarchists, radical fanatics, insurrectionists, and groups advocating the elimination or replacement of government and destruction of the critical social-organizational institutions that sustain society. On the other hand, DVE can also be viewed as a distinctly political aberration rooted in a set of beliefs and dwelling in extreme leftwing or rightwing goals and values. DVE can be seen as favoring a violent pathway to government overthrow or revolution, along with covert socio-political messages to solicit aggrieved support for the extremist’s cause. Its hidden political birthmarks or DNA are real enough.

DVE begs the question of who defines “extreme left” or “extreme right,” even if the litmus test for violence is uniform and strident in both groups. In 2022, the ironic and difficult task is to determine (1) whether groups on both sides merit equal vigilance; (2) whether groups on both sides reflect the same level of credible threat, and (3) whether available intelligence and best evidence suggest groups on both sides can execute an immediate criminal act or other violent threat to civil society. If organized groups are viable threats to peace and security near a police presence in a public, commercial, or residential area, a significant conundrum ensues—how best to deal with a borderline crowd of angry agitators verbalizing immediate threats to public safety within a few feet of riot gear–equipped police and nearby private individuals? Is there a proven, patented, and well-rehearsed answer to the question absent any ambiguity or indications of risky overreaction? What is the precise formula that evades any hint of “overreaction” or “unjustified police aggression”? Does it seem clear that the police and society cannot yet find a suitable, fair, unambiguous, appropriate solution for that situation? Or is the best solution to the dilemma instead patently obvious?

Random commentaries on social media, including hostile statements, still fall within the realm of constitutionally protected free speech. However, in a series of cases, the U.S. Supreme Court has tried to define what is protected free speech and what is not. Foreign terror groups such as ISIS, Al Qaeda, Hezbollah, and others use social media to influence sympathetic U.S. residents to support and act out suggested terrorist actions beyond the zone of constitutional protection. One chief dilemma for law enforcement is how to mitigate and preempt violence from such groups before it occurs, thwarting a violent or destructive act. It is tougher to discern what can be done before violence occurs. Technology helps, but politics always plays a role.

Certain groups operate consistently outside mainstream behavior, routinely advocating violence, engaging in violence to promote their cause, disrupting civil orderliness and peace, or attacking legitimate commercial interests. Their tactics appear designed to be consistently confrontational with gestures and activities aimed to intimidate any peaceful opposition.

Police have their tactical options constrained by court decisions and precedent. While U.S. citizens generally enjoy unfettered free speech rights, in some cases, the courts have concluded that the government’s national security interests justify restrictions on protected speech, such as in 2010, when the Supreme Court upheld certain applications of a federal statute prohibiting providing material support to U.S.-designated foreign terrorist organizations.¹ Courts have often drawn a line between speech that advocates violence in the abstract versus inflammatory speech that facilitates violence itself. Those forms of speech simply seen as advocating violence most often enjoy some form of robust constitutional protections because, in the court’s view, upholding the First Amendment language requires preserving “uninhibited, robust, and wide-open” debate on public issues, even if that means allowing individuals to express ideas that are “deeply offensive to many.”² Provocative, controversial speech, even if offensive or annoying, is protected. Likewise, when it comes to using the internet to incite terrorism, the court has drawn a line between simple advocacy (seen purely as content) and messages that actually trigger and motivate violent acts.³ Yet, the court has reserved its discretion to review relevant “unprotected” categories of speech that generally can be restricted constitutionally because of their content. In effect, not every speech situation is exempt from certain constraints.

Speech advocating violence and terrorism is prohibited by the terms of service of Facebook, Twitter, and other social media outlets. Such prohibitions are permissible under current judicial interpretations of First Amendment law because these platforms are operated by private sector organizations. First Amendment principles apply only to state (i.e., government) action. However, users banned from one social media outlet may move to another online forum that does not have the same restrictions, sometimes finding a community of like-minded individuals who reinforce or escalate the individual’s violent rhetoric. First Amendment protections do not apply to foreign nationals posting online content from outside of the United States, and many lower court decisions involving the First Amendment rights of foreign nationals are constrained by national security factors and very limited. The U.S. Supreme Court has noted a First Amendment right to receive information and ideas promoting the “uninhibited, robust, and wide-open” debate and discussion that is contemplated by the First Amendment.⁴ Generally, courts are reluctant to allow the government to restrict free speech or impose silence regarding any suspect speech with which it disagrees by prohibiting or imposing special burdens on an entire category of speech: This is often referred to as “content discrimination,” and it raises the specter that the government may effectively drive away certain ideas or viewpoints from the public square that it disapproves of seeing, hearing, or reading. The Supreme Court has repeatedly stated that content-based laws are “presumptively unconstitutional” and subject to the court’s most stringent review, at least insofar as they involve fully protected speech.⁵

The issue of police dealing with violent domestic extremism inside the United States involves at least three separate elements: (1) constitutional definitions of domestic extremism; (2) a listing of officially designated domestic extremist groups; and (3) what options police have in reducing groups’ harmful domestic effects and curbing any implied risks of immediate violence. An effort to engage in the subject without confronting these fundamental issues may be a serious mistake. Provisions of state law that run afoul of what the U.S. Supreme Court has outlined as permissible free speech are in jeopardy and may be unenforceable. As such, the issue is genuine and compelling and unlikely to evaporate as police and local governments must determine what is publicly tolerable and what truly reflects inciteful calls to violence or widespread immediate lawlessness.

Political Forces & the Slippery Slope

If it is truly important to define DVE and outline its critical ingredients, where are the boundaries and red lines that form a legal, rational, and operational guide? Is excessive expression of free speech coupled with immediate or inspired violence enough? Where is the rationale and calibrated set of special conditions where police must clearly provide a security cordon and watch groups express their vitriol and heated frustration passively versus a situation where aggressive but balanced police intervention to save lives and property with the aim of preserving public safety is fully justified by the circumstances? Is law enforcement hamstrung by unexpected political forces in responding? Are the whims and inclinations of political leaders based on cautious hyper-sensitivity to media coverage? Is any of it crystal clear? Is it always the case that police have wide latitude to act? No.

Here the rubric and standard to be applied when individuals inside a largely peaceful protest throw Molotov cocktails at police in riot gear or set fire to police vehicles are telling. Do such actions afford a sufficient legal and operational tripwire to engage in aggressive policing? Is there a uniform standard and set of circumstances if risks of “disproportional use of force” are clearly involved? If the police make a fairly quick decision to respond to angry crowd provocations exemplifying imminent violence, they must consider if the collective use of increased force makes sense. However, when police escalate force options collectively—using weapons, tear gas, mass arrests, and other tools to quiet unruly protesters, reduce tensions, or simply compel compliance—those efforts can go wrong, creating the ingredients for conflict and the very violence that a police presence was meant to prevent. Where are the uniform criteria for police engagement, collective intervention, aggressive response, or joint suppression of injury or harm to people and property adjacent to the protest site? It appears that not easily predicted political factors govern these situations.

What about the alleged 600 Black Lives Matter or antifa urban protests in 2020, many turning into riots resulting in raging fires burning police precincts and government buildings? What about anti-abortion activists bombing a Planned Parenthood building to emphasize their views? What about university students in league with local community members destroying campus property to oppose the visit of a controversial political speaker in their midst? What about hundreds of truckers obstructing streets and nesting adjacent to government buildings to demonstrate their collective grievances? What about an assembly of disgruntled parents who shout and mock their local school board for serious concerns the parents have about a school curriculum that affects their children? What about a Nazi splinter group rally and march down the main street of a city? What about hundreds of airline pilots and professional health workers who stage public protests in refusal of COVID vaccination requirements?

The line to be drawn for police in dealing with DVE from day to day seems clear enough, but it is far from obvious. Intervention by police groups to quell rioters, thwart terror attacks, and preempt potentially violent encounters between divergent hostile groups remains a judgment call. Many would prefer this uncomfortable situation to be resolved and clarified by the courts. Is that a real solution or a stopgap measure to delineate where various extremes can be defined?

We know that the FBI refers to and defines domestic terrorism in 18 U.S.C. 2331(5), yet the U.S. Department of Homeland Security has its own definition found at 6 U.S.C. 101(18), which is substantially similar but not purely identical to the title 18 definition used by the FBI. (See sidebar.) Does this illustrate or illuminate the definitional and legal morass that impedes uniform law enforcement application? Where does this legal anomaly leave law enforcement? This definition is NOT dispositive of the extremism issue nor is it adequate to consider applying it there. Certain ingredients such as intimidation or coercion of persons and government via violent means involving “mass destruction or assassination” seem similar enough in both statutes to permit police chiefs discretion in applying these criteria when likely violent behavior allows police to invoke a preemptive tactic. But this is a terrorism statute, not a law that addresses extremism head-on. As with other sensitive issues, political leadership often considers the media optics and defaults to the socio-political ramifications of what may be perceived as fitting to quell an extremist event or episode. This default position, which is meant to signal a tough line on extremism without laxity or doubt, actually does police no favors. Extremism remains opaque and politically ambiguous.

This vague definition provides limited guidance in dealing with extremism per se. The U.S. military attempted to define extremism in its ranks in 2021 by focusing on the service member’s active participation in a prohibited activity as opposed to membership in a group, support for an ideology, or opposition to a political leader, which are protected under the First Amendment. The Secretary of Defense had its own Office of the General Counsel to review and update DODI 1325.06 to more specifically define what constitutes extremist behavior:

• • Advocating or engaging in unlawful force, unlawful violence, or other illegal means to deprive individuals of their rights under the United States Constitution or the laws of the United States, including those of any State, Commonwealth, Territory, or the District of Columbia, or any political subdivision thereof.
  • Advocating or engaging in unlawful force or violence to achieve goals that are political, religious, discriminatory, or ideological in nature.
  • Advocating or engaging in terrorism or the overthrow of the government.⁶

Does anything equivalent exist to define extremism for nonmilitary U.S. civilians? This is far different from homegrown extremism and risks being misconstrued as such. The FBI and DHS have taken great pains in 2021 to define their terms. The FBI and DHS define a domestic violent extremist (DVE) as

an individual based and operating primarily within the United States or its territories without direction or inspiration from a foreign terrorist group or other foreign power who seeks to further political or social goals wholly or in part through unlawful acts of force or violence. The mere advocacy of political or social positions, political activism, use of strong rhetoric, or generalized philosophic embrace of violent tactics may not constitute extremism and may be constitutionally protected.⁷

The joint FBI and DHS positions use the critical phrase “intimidation and coercion of a civilian population” to define the contours of extremism. These definitions have never been challenged or affirmed by the courts.

The FBI and DHS set of criteria for defining domestic violent extremism (DVE) include violence by the following groups:

• racially or ethnically motivated violent extremists
• anti-government/ anti-authority violent extremists (militias, anarchists, sovereign citizens)
• animal rights and environmental violent extremists
• abortion-related violent extremists
• Puerto Rican nationalism violent extremists (FBI only)
• all other domestic terrorists whose motives are rooted in ideology⁸

Thus far, the courts have not ruled on many of these criteria.

Consequently, it is fair to inquire how so breathtaking an array of extremist groupings and conduct would or should be handled by law enforcement. Police and judicial officers must consider the constitutionality of these varied categories. Instances where violence is clearly manifest and displayed would seem clear. As such, the actual commission of a violent act versus mere discussion or contemplation of it becomes moot and constitutionally suspect. Does this resolve, clarify. or reinforce a conventional agreement of what DVE really is? Or does it create yet another unique conundrum for law enforcement seeking to thwart, deter, or otherwise prevent a DVE attack? What reasonable options are available and can be weighed for police to quell or control a borderline violent event?

Domestic Extremism: Hate Speech & What It Signifies

Online and verbal harassment of Jewish, Asian, Muslim, LGBTQ+, and other groups, including those related to the abortion controversy, police misconduct, and the restrictive public health measures related to the COVID epidemic, has been reported with increasing frequency during the last few years. Some advocates claim a genuine uptick in such incidents since 2020 and an unbroken trend of continued sexual harassment during the same period. The combination of verbal and physical threats, along with online harassment, is noted by human rights groups as steadily growing during the last five years. While the U.S. Constitution can be amended, as it has before, it clearly cannot resolve the difficulty of doing so as it applies to hate speech, since doing so would require the erosion of free speech. A solid definition of hate speech, which does not violate the First Amendment, continues to be difficult for courts to accept and probably will be for years to come. The Cambridge Dictionary, for example, defines hate speech as

public speech that expresses hate or encourages violence toward a person or group based on something such as race, religion, sex, or sexual orientation including communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation.⁹

But dictionaries are one thing and the U.S. Constitution quite another. Hate speech in the United States has no official legal definition, and the U.S. Supreme Court has ruled consistently that hate speech, while detestable, is protected under the First Amendment, just like any other form of speech. The court has not only protected hateful language from outright bans but from lesser restrictions as well, such as codes on college campuses.

Various episodes recounted via media networks since the fall of 2021 include a wide smattering of incidents that human rights groups have considered “hate speech” and many others see as borderline criminality. To hate a person or group is not a crime in the United States; nor is it a crime to give voice to that hatred. Hate speech and personal opinion are impossible to separate legally thus far, and without a legally enforceable definition everyone can agree upon, certain words and statements may be interpreted by some as offensive while others may find the exact same speech perfectly acceptable and wholly within the scope of one’s unrestricted freedom of expression. However, for police, the issue creates a two-fold dilemma. First, a person uttering hateful speech, however offensive, has constitutional protection unless there is specific advocacy of—or instance of—actual violence enacted by that person. Second, the expressions of hateful views via most public avenues of discourse are likewise protected until or unless those views actually trigger a specific violent act shown to flow directly from the hate speech itself. Here the connection between the utterance and violence must be clear and unambiguous. Simply telling a crowd to burn down a business is one thing, but the actual act of torching the property is quite another. The conventional and commonsense criteria for distinguishing rioting from ordinary, strident public protest are paramount.

If the government is to shun the use of subjective censorship and restrictions on speakers in the public square and on campuses, it must sustain the inherent right of citizens to assemble, engage in free speech, and protest peacefully. However, when protests become violent, it forces police leadership to make a situational command decision that may be seen as unpopular in hindsight. The balance to be struck between keeping civil order and restoring community peace while safeguarding the legitimate peaceful protests of aggrieved groups is a judgment call reserved for police and their political leaders. Media pundits and outspoken social critics are not part of that decision, even though they can influence the public debate. Police and civil leaders must discuss, examine, and wrestle with these issues.

What must be kept in perspective is the specific nature of the activity, whether it is protected speech or not; its direct linkage to violence; and the degree to which speech specifically stimulated immediate violent activity. Protests will continue as legally protected, but rioting does not fall under that protection. During the tumultuous summer of 2020, there were at least 600 reported instances of rioting, looting, and rampant property destruction in U.S. cities. Were these constitutionally protected forms of free speech and assembly? Were they actual instances of DVE or something else? The protection of freedom of speech allows various viewpoints to be circulated as fair and legitimate. As such the ambiguities and central issues embedded in coping with DVE remain conundrums for police.

DVE Mitigation Challenge: What Does a Reasonable Response Look Like?

For police chiefs, critical guidance in handling a variety of DVE incidents is less than clear. Given political realities, the major takeaways from this brief analysis include these advisories:

1. Hate groups per se cannot be constrained under the U.S. Constitution just because they express hate, unless they engage in actual violent acts or prohibited activity that leads to violence.
2. The definition of prohibited activity cannot curtail or restrict constitutionally protected free speech, which may be offensive or inflammatory but clearly falls short of actual violence. Drawing the line between protected free speech and actual violence is key. Many communities authorize certain police options for dealing with disorderly conduct, breaches of the peace, or unlawful assembly, thus allowing some leeway in executing a response to curtail such behavior. Crowds or speakers who explicitly advocate violence and criminal activity compel police leadership to know their options and determine when free speech has ended and illicit behavior has begun. When a crowd’s collective behavior is persuasively violent, the Constitution no longer affords them protection, so reasonably justified police efforts to restore civil order and peace in those cases are warranted.
3. It is often difficult to determine conclusively if a crowd is agitated enough to actually engage in violence or any immediate criminal act. Therefore, using unlawful force before violent crowd illegality occurs may actually increase versus diminish the mob’s constitutionally protected rights. Stopping crowd violence before it happens is a major challenge for police. Crowds that consider violence but never act upon it can avoid stringent police restrictions (absent proximity to restricted special security areas) until the actual threshold of violence is crossed.
4. Discerning when timely police intervention may forestall or prevent the display of violent behavior is not an easy judgment call. Police actions to preempt and discourage mob violence include at least a dozen proven crowd control tactics where legally justified restrained response makes sense. History has shown that specific circumstances and provocative factors are influential, and community political leadership views can often prevail over police preferences. If a robust police presence discourages mob violence rather than provides an excuse for it, then its effectiveness can be seen. Options for police leadership to reduce the risks of mob violence merit routine and regular practice with extra effort devoted to carefully designed exercises to discern reliable best practices, examine pitfalls, and explore effective response options.

Dr. Robert McCreight spent 27 years in federal agencies working on a variety of national security projects and special defense programs associated with nuclear, chemical, and biological defense matters. He served as a periodic advisor on the Chemical Weapons Treaty and Biological and Toxin Weapons Convention during a career at the U.S. State Department, along with programs designed to enable satellite verification of arms control treaty compliance. He helped draft HSPD-10 and HSPD-21 and served as a contributing White House assistant on nuclear policy. He is also a retired special operations officer. Upon retirement he published extensively on weapons of mass destruction issues, crisis management, emergency response issues, dual use weapons, and neuroscience topics. Periodically, he advises state and local governments on chemical, biological, radiological, and nuclear (CBRN) issues and serves as guest lecturer at the National Defense University and George Mason University. He has taught graduate school courses at seven different universities during the last 17 years involving technology, CBRN matters, and other areas of his expertise.

Notes:

¹Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

²New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

³Brandenburg v. Ohio, 395 U.S. 444 (1969); Yates vs. United States, 354 U.S. 298 (1957).

⁴New York Times Co., 376 U.S. 254, 270 (1964).

⁵Sable Communications of California v. Federal Communications Commission, 492 U.S. 115 (1989); Boos v. Barry, 485 U.S. 312 (1988).

⁶U.S. Department of Defense (DOD), DOD Instruction 1325.06, Handling Protest, Extremist, and Criminal Gang Activities Among Members of the Armed Forces, updated December 20, 2021.

⁷Federal Bureau of Investigation (FBI), Department of Homeland Security (DHS), Strategic Intelligence Assessment and Data on Domestic Terrorism, submitted to the Permanent Select Committee on Intelligence, the Committee on Homeland Security, and the Committee of the Judiciary of the United States House of Representatives, and the Select Committee on Intelligence, the Committee on Homeland Security and Governmental Affairs, and the Committee of the Judiciary, May 2021.

⁸FBI, DHS, Strategic Intelligence Assessment and Data on Domestic Terrorism.

⁹Cambridge Dictionary, s.v. hate speech.

Please cite as

Robert McCreight, “The Conundrum of Domestic Violent Extremism,” Police Chief Online, July 27, 2022.