Trump can’t criminalize antifascism—for now
The president cannot designate antifa a ‘domestic terrorist organization’ without changing the law
On Saturday, Trump tweeted out that he was thinking about declaring antifa “a major Organization of Terror,” which is something his constituents have been begging him to do for nearly his entire presidency. The largest petition, with nearly 370,000 signatures, was submitted two years ago. The language of Trump’s tweet is non-committal—“Consideration is being given”—because he doesn’t have the legal authority to proscribe any domestic organization.
The “terrorist organization” designation is a legal tool for counterterrorism that enables authorities to criminalize the act of providing “material support” for terrorists. Currently, there is no federal domestic terror statute and consequently no list of outlawed domestic terrorist organizations.
The State Department has a list of about 60 foreign terrorist organizations (FTOs) but one of the criteria they must primarily operate outside of the United States. Making a similar list domestically would be kind of tricky, given the existence of this thing called the Bill of Rights.
Labeling any domestic organization “terrorist” would run afoul of the First Amendment right to freedom of…
