What Does the Antifa Executive Order Mean for Free Speech?

that I take listen to that. I took listen to that, and I think it's a fantastic interview and I don't think as much as that we can add to it. So we're going to re air that interview in full. The one thing I would add to it is that there have been a number of cases recently where grand

juries have not returned an indictment. That's relatively rare, but we are seeing that more frequently, and that just enforces everything that Moe says here, which is that at this time we still have sep of powers, and at this time the executive cannot simply make law. One still has to be prosecuted according to a statute by a district

attorney or a USA attorney. Right they president cannot just make law in this instance pertaining to the First Amendment by executive order, that doesn't mean that they will not be harassment. And as you're here here, those two are distinct things, and I think MO gives an excellent outline on how we should think about and conceive this moment in American history. So, without any more of me taking your time, this is an excellent interview that bursted with MO.

I hope you enjoy it, and if you would like to check out Final Store Radio, you can do so using the link that I will put below this episode.

executive orders are frightening. They are a frightening contribution to an already dangerous political discourse, and they may very well end up being quite disruptive to left movements, including I think primarily centrist liberal movements. But nothing that was legal last week is illegal this week, certainly not because of those statements, and the state cannot prosecute you for things

that were legal when you did them. So yeah, I mean I can't see the future, but as of right now, the law and the constitution have So if this administration wants to in any meaningful legal way designate anyone, any group as domestic terrorists, they can change the law, which is not going to be quick or easy, or they

can dispense with the law. But under the current legal regime, there is no mechanism that would make it illegal to be and to whatever that means, or to hold anti fascist values, or to assemble or to petition the government. And you know, to be clear, not that doing any of those things or being any of those things are necessarily effective at creating social change right now, but my point really is they're not illegal.

a year ago hit this region. He was recorded, like he went pretty viral, calling out and shouting down a state politician who had a like public meeting here in the area, just saying there's been like total like lack of support after the storm, and here are all the needs and you're just allowing politician this sort of thing. The same man, right after the executive order that Trump made about burning US flags, went out and burned one across from the White House and then he got arrested

for it. Like, I thought that there was a Supreme Court decision back in the eighties that said it's not actually illegal to burn a flag. So does that make his executive orders now law?

Right If he was charged with, you know, creating a fire hazard, I suppose that, apart from the fact that it's clearly First Amendment retaliation, I suppose that you could be criminally charged with creating a fire hazard in a public place or something like that, but no flag burning remains protected regardless of what the President or Congress says

about it. It would take either an amendment to the Constitution or a very serious change and Supreme Court jurisprudence to make five burning illegal.

surveil and disrupt and target the left. But actually, before we do that, why don't we talk about sort of some of the categories that are playing in playing here and be really clear about definitions or at least understand that there are differences between these categories, right, because there is a difference between the law and political discourse. And

there is a difference importantly between law and power. And there's certainly at least some daylight between the legal constraints on state power and the state's power to ignore those constraints. And then I think what will be significant to this discussion is there is a significant difference between antifa, which is a set of practices or beliefs that are not necessarily even all that well defined, and what this administration refers to when it uses or deploys the word antifa.

And there is yet more difference between the booking man that is being invoked by that and the individuals and organizations that the administration actually intends to target. There's a difference between political targeting, surveillance, disruption, and prosecution, right, those things are all different, And there's a difference between prosecution

and conviction. And there is an important difference between someone's political beliefs and associations which are and remain protected by the First Amendment, and politically motivated conduct that means illegal. So you know, executive orders and these kinds of statements

on national security are policy statements. They don't in and of themselves make things happen, they don't in and of themselves change the law, and an executive order that is inconsistent with the constitution or the existing law at least ought to be unenforceable.

theory about you. But so that distinction of like, well, you might get exonerated by a court after you've been held in pre trial for a year, I guess that is an important distinction, right, because it means you're not spending you know, an extra thirty years or twenty years or whatever behind bars.

in this situation. The fact that an executive order doesn't change the law does not mean an executive order will not result in a lot more state repression, or that

it won't disrupt movements or even ruin lives. It doesn't mean that Trump is not going to accomplish the thing that I think he's actually trying to accomplish here in the immediate short term, which is broadcasting to his base that non state action against people identified as or perceived to be part of the despised group you know is desirable by this administration will be condoned by this administration.

I think that is important to recognize. Saying that it doesn't change the law does not mean it isn't dangerous. I just want to be very precise about I think the ways in which it is likely to be dangerous and some of the ways that it might not might not be. And again I'm not trying to be dismissive but state repression exists all the time. State repression against leftists and anarchism in particular has been ongoing the whole time.

This is not a Trump thing. And in fact, I think it's important to note that the executive who's probably most responsible for having laid this groundwork is Biden, who set forth a policy strategy that focused on funding the federal targeting of what at that point he was calling political extremists, which was a label that was being applied to groups on the left as well as neo Nazis

and all right groups. So this administration has already been engaged, and not just this administration, right, we have centuries at

this point of targeted disruption of left movements. The way that it's currently being rationalized is a little bit different, the way that it's being broadcast normalized is a little bit different, but it's I will say, I don't think this is actually anything all that new or different, And the difference in how dangerous it is is one of scale maybe rather than it's a difference in scope rather than nature.

not what's actually happening. That's not what actually was the motivation for that person or like that person voted you know, Republican in the last election.

intentions moving forward. This is the narrative, and this is the story that they're going to be going with.

I think it's part of the point, right. Manipulating the facts, making narrative claims that are totally unsupportable, and muddying the waters in this really fundamental way is part of the project.

its limits and beyond break it and recognize that governance is about the imposition of power and the sheltering of those who are under the controller or in the protected community of the state, with a consideration of war through the state's power against internal enemies as well as external enemies. And this is the devil's bargain that we make. It's

like Hobbes on steroids. And it feels like a lot of the stuff that the Heritage Foundation and Project twenty twenty five has been pushing was that they have this. I know that there are some theocrats in that movement.

There's the unitary executive theory that a lot of them have been pushing, and they'll play with this idea like the Trump administration will play with this identity of the King King Trump or whatever the Dawn as it were, like making these executive decisions and being unbeholden to anything else. And they've actually been, like you know, saying to courts, you can't stop us from deporting these peoples who with

unsafe third country whatever, stop us. I wonder if, like I wonder if you have any comments on this, if I'm coming out of left field or what.

laws collapsing. But when I'm talking about the rule of law in this way, I'm really talking about constraints on state power, and those are what's collapsing. And that's exactly what Schmidt envisioned and argued for Frankly, and I do

think we're seeing that. I think one of the things that I've noticed in some of these eos, especially the couple of statements from the last few days, is he keeps talking about things like love of God and Christian anti Christian sentiment, which is I mean, you know, this is entirely incompatible with the First Amendment, which provides no

state shall establish our religion, right. I mean, we really are outside the contours of recognized you know, legal norms, constitutional norms, and I think a lot of this stuff is functioning and is meant to normalize this kind of discourse and to inject it not only into the exercise of government power, but to normalize it in terms of what people understand to be legitimate legal discourse.

Canary emission. Does this mean that police are coming after people for sharing memes? Is that happening? Is that what's happening in these cases?

undermine the First Amendment. The First Amendment still exists, and all of the legal framework around having the right to say things as long as those things are not true threats, that still exists. So it is not unusual for people to be targeted or monitored or visited by law enforcement, but typically that stuff doesn't actually really go anywhere. I am concerned about people being subject to doxing and having negative social consequences and fallout from this kind of stuff,

and it certainly is you know, can be life ruining. Again, I don't mean to trivialize the effects of this kind of retaliation social retaliate, but it is not the same thing as a criminal prosecution or a criminal conviction. It's

a different set of mechanisms. Now, one thing that I do think is interesting is that these eos and the statement that came out on the twenty second and yesterday particularly identify certain modes of that kind of social conduct that you're talking about, like doxing swatting rag, which is making false report of like an ongoing violent crime, so that a swap team shows up and raids somebody's.

enforcement to someone's house. So there is a perverse way in which this may end up being sort of protective, I suppose, because I think it would be very difficult for the government to go after the people who are exposing ICE agents, which again is not illegal right now.

Even if it were to become illegal, it isn't right now, and it would be very hard for them to go after those folks and not also go after the folks who are running that silly website about people who say something mean about Charlie Kirk.

a differentiated subjectivity. Like there's the subject of the state that falls under the values that are being attacked Christianity, whiteness, heteronormativity, these like patriotism in these certain ways versus the people that are doing these same things but are corrupt, are dirty, are outside our internal enemies, are Soros funded. However we want to like yeah that, but yeah, I guess that's not I mean, that's this is nothing new.

nonconforming people and what they're calling anti buzz. So you know, we're seeing we've been see congressional investigations, the allocation of funds to federal law enforcement, purging not just individuals, but whole agencies that the administration feels are insufficiently aligned with

its priority replacing federal law enforcement. That and I mean ranging from FBI agents on the ground to doj with people who will enthusiastically and blindly pursue these priorities, and using a lot of resources to target the nonprofit text status and funding of groups identified as being aligned with any of the disfavored movements. And one of the things that they're doing is kind of it's this real spaghetti, you know, throwing everything at it, and it's very overwhelming.

It's overwhelming for movement infrastructure, it's overwhelming for legal for people on the ground, and it's all happening at once, and I think it's all being it's mutually compounding, it's mutually reinforcing, it's demoralizing, and in particular, the stuff that's

happening with immigration is so devastating. And because immigration is so wholly under the control of the executive that is an area where he's able to sort of make a policy and make it so and have it be carried out by FIAT, and he has made his own private army with ICE. And I think one of the effects that I in just in my observation, that that has had is that people see that happening and assume that

he has that level of control over everything else. And I do want to point out again it's absolutely devastating to see what's happening in the immigration space, but in fact he does not have that level of control over the rest of government and over non immigration laws, and I think that's really important to remember.

be present from different states in these places. Almost like if it's constant and overlapping enough, then eventually just military being on the streets, generally rousting houseless folks is going to be a normal thing.

liberal community advocacy organizations and NGOs. And these are people who have nothing whatsoever to do with Antifa, by any stretch of the imagination, who are being attacked, whose funding is being attacked, who are primarily I would say at risk, not because they have engaged in anything approaching unlawful conduct. And frankly, I think the biggest risk for many of

those people is the anticipatory compliance of their funders. We have seen a really similar thing happen with universities, where universities have been targeted by the state, by the federal government and have been accused in particular of anti Semitism, and frankly, I think it would be the work of an afternoon for general counsel at any of these universes cities to point out that in fact, there is a legally established difference between anti Semitism and anti Zionism, that

criticism of the nation state of Israel is in fact entirely legally distinct from criticism of or threats against Jewish people, And if any of these universities actually bothered to challenge these allegations, I think that they would win in court

on the law. And what we're seeing instead is the universities declining to challenge these allegations, settling out of court, paying large amounts of money to the allegedly aggrieved parties, and capitulating in ways that are unnecessary, unwarranted, not legally justified, irrational, and seed more ground, not just more ground than is legally called for, but more ground than is even being

asked for in these cases. And so you know, this is to me one of the great dangers of normalizing these discourses is that these large institutions are engaged in acts of self preservation that actually undermine civil society, when even a small amount of courage would go a very long way to preserving it.

trying to be a Pollyanna about this. What I'm trying to say is the demands that are being made by this particular administration are actually so far beyond the pale that based on our legal regime as it currently is, when we fight, we win, and so I think it is very worth reminding people that, however imperfect the law, is, the current state of the law forbids much of what this administration is doing, and it is actually worth standing

up to it. There are other groups of people similarly who are not related to Antifa, and one of those groups is coasters, like including boomers, who are on Facebook and Twitter making jokes about how the right it's so hip critical, and those people are getting targeted, and I would just gently remind everyone that the First Amendment does still exist and that the solution to repression is not

self censorship but courage. And also, as I have said many times, including to you on this program, discretion is the better part of valor, and not everything needs to be said on the internet, So maybe think about it before you post something that you would not like to

hear read back to you by a humorless prosecutor. Then we have these other groups that are engaged in exposing law enforcement, which I referred to a minute ago, and I think the groups that are you know, exposing ice are definitely going to be targeted have already been targeted for that activity, but it sort of remains to be seen how that can happen while also protecting Canary mission. Right then, we have groups that are being perceived as

or identified as Antifa. Who are the people who are like doing food not bombs and community gardening and cooperative bookstores and prisoner letter writing, all of which are extremely First Amendment protected activities and all of which are not only likely to be highly surveiled, are already highly surveiled.

And this is the group of people who I think are actually probably most used to this and best prepared for it, and also might be really hard to prosecute effectively because they're not doing crimes and you know, like the NGOs that we were talking about. The biggest point of exposure for all of these groups is likely to

be financial. We can certainly anticipate that the state is highly interested in looking at all of our bank records, to the extent that our bank records exist with all the money we have, right Like, we're all handing around the same staff of twenty singles to each other. But hey, you know wirefraud. What I can say is that you know, something like a bail fund, and you know, community support

funds do need to be very cautious. That has already always been the case, and this is a really good time to hire a CPA to go over your books and to make sure that you have kept really meticulous records, to make sure that if you have raised money for something, you have only used it for the thing that you said it was going to be used for. And this is once again something that largely is a feature of

far right organizing. Right. I don't know if you remember, but Steve Bannon was actually prosecuted for wire fraud because he was raising money to do something.

anything unlawful. And you know that doesn't mean this won't be disrupted. It just means, look, I'm not naive enough to say that your innocence will protect you, but it's a good start. And then we have folks who maybe actually do engage in unlawful conduct or revolutionary action, or people about whom that claim could somewhat credibly be made. And that's actually just a different a different group, right, And those things were illegal last week and they're illegal now,

and they're not more illegal because they're politically motivated. Right, Although you know there are terrorism enhancements and sentencing enhancements and things like that, the fact is, like, you know, it can't be more illegal to spray paint Free Gaza on the side of a building than it is to spray paint I Love Trump on the side of a building. Right.

and people got apparently dragged outside. Again, I was not there for this, but like now the people are facing like people who were in the crowd, who are not the people who were filming or facing charges of ethnic intimidation. That's a very specific case in a different jurisdiction from where you are practicing law. But it's not just about like what's being charged against them isn't about assault per se.

It's this enhanced, politically driven statement based on the rhetoric that's based on the politics.

don't think this has changed substantively. Yeah, like the fact that the President said Antifa is a domestic terrorist organization just doesn't really change the legal landscape. This has been the targeted surveillance of the left, whether you call it Antifa, whether it's the Green scare, whether it's the Black Liberation Army. This has been a priority for decades of administrations. More and more legislation has been developed to criminalize garden variety

protest conduct. We saw that a lot around Standing Rock and BLM. More and more resources are allocated to testing creative strategies for monitoring and criminalizing political activities. You know, again, state repression and the tools that are used in the service of state repression are just not new. And the fact that you put out these statements is maybe a good reminder that we should be circums fact and aware of repression and prepared to bear up under it.

Section H of that September twenty fifth statement refers to the Attorney General pursuing quote, politically motivated terrorist acts such as organizing docs and campaigns, swatting, rioting, looting, trespass, assault, destruction of property, threats of violence, and civil disorder like I know, those are all things that you know, they've already got charges attached to them. It's just these are now being framed within the framework of being terrorist acts.

But you know, you said, like these practices of attacking adjacent like supportive movement and civil society organs. It's not in and of itself new, but it seems like the framing, especially with the Atlanta case, where the prosecutors brought up at the beginning ernark like they gave a Merriam Webster Dictionary definition of anarchism and then said, all these people fall under this umbrella because they all have this ideology. Therefore they are a conspiracy. Is that what the administration

is trying to do? And is that different from what they've already done at a federal level.

enacted in I think nineteen seventy to go after the mob. Right, it was to go after crime families, but it's been used against so called gangs and other politically motivated prosecutions for a long time, and so RICO has really used to kind of criminalize whole communities. But it requires that an actual crime has happened. Right, association or ideology in itself is not sufficient. So it requires an actual crime has happened. And it also requires an quote an enterprise,

like a coordinated enterprise. And because the first Amendment for text association and a large diffuse group of people sharing values is not an enterprise, you know, I'm not sure. It's not a straightforward path to say we want to use rego in a politically motiv motivated way and to actually be able to have I'm sure this group under a net. Right. That's like, you know, saying we want to go after Antifa is like saying we want to go after people who like cats. Right, there are people

who like cats, but they certainly aren't coordinating together. I suppose that there are actually people who would say, like, yes, I identify strongly with this set of values, but it's not a membership organization, and it would I think be very difficult to mount a prosecution or to mount a successful prosecution on the basis of what are clearly First

Amendment protected beliefs and associations. And there's pretty good law on this point, actually, and it comes from an effort to prosecute a bunch of anti abortion protesters under RICO and the court said you can't do that. The fact that there's a large group of people who happen to believe the same things does not mean that they are

an enterprise. So look, get me wrong again, this would be hugely disruptive, but it would be very difficult to sustain an effective prosecution or obtain a conviction if there was one competent investigator, prosecutor judge or jury member anywhere along the way. But yes, hugely disruptive if if they managed to do it. I would like to note something about the stop coup City Rico. That's important. So first of all, yay, those all those charges, those ricos were

dismissed for legal reasons of being utter bolts. And I know that you know there's some concern that that will be appealed, but I think it is worth noting and celebrating that when we fight, we win. But sort of more to the point in this context, I do want to note that Georgia's RIGO statute is different from the federal reco statute, and it's actually even worse than the federal RICO statute, and it still couldn't be effectively used in this way. And also federal RICO has often failed.

Right efforts to use federal RICO in a politically motivated way have also failed. So if you look up like the Ohio seven, which was a fairly early effort to bring a politically motivated RICO that did not go great for the government. So yeah, I think that's important to note about RICO.

and who they're pursuing. Anti law enforcement and anti conservative attacks have been framed as you know, of considered effort by far left extremists in the media, and also like by these institutions as they're you know, moving forward before they actually make any arrests or whatever, and through their prossecutution sometimes using terms like you know, antifa or trantifa

or whatever sort of motivations they're giving. I also wonder if you could say a thing specifically about this sort of framing that is being given.

woke gender ideology that's coming for your children. And it's like, it's it's interesting because like, in order for people in a lot of cases in the US to be able to gain access to medical care that they desire or need around maybe gender dysorio or some some other experience, they often have to use these like clinical terms for what they are experiencing and why they need medication for it, and not faulting people for making that approach because you need the medicine that you need.

medicalization of gender affirming care. But I do want to be very clear that that does not have to and does not formally or officially include pathologizing trans identity. That's something that's being imputed and being imposed, but it has no basis in clinical practice. Not that that necessarily matters to the government, but I do think it's important to

point that out. I think given that previous efforts to restrict gun ownership on the basis of previously diagnosed mental illness have not been super successful, I don't know that this one will be either. But again, this is an issue of power and less an issue of law or logical coherent legal philosophy.

to freeze the assets of a domestic group. There are ways to posit or show a connection between a domestic group and a designated foreign terrorist organization, which is a real thing that has legal effect. There is a way to financially designate a group or an individual, as you know, having this kind of relationship to foreign terrorist organization or an FTO. So, but there's no legal mechanism for designating

a domestic terrorist group. That's not a thing. So this is a place where the government could simply dispense with the law. But I do not think this is a place where the government can use the law to create a category of domestic terrorist organizations. Just to like explain ftos a little bit, there is a category of organization that are designated by the State Department as quote, foreign terrorist organizations ftos are designated by the State Department, and

they are listed on the State Department website. Right, it's not a secret who they are. You're not going to suddenly find out that you know, you gave money that to I don't know the Greek equivalent of the ACLU, and now it's you know, it turns out it's an FTO. There are certainly cases where the government has successfully claimed that a connection between a domestic group and an FDO exists, even in the face of overwhelming evidence to the contrary.

And if you have a connection to an FTO, you can be prosecuted for what's called material support for terrorism. And it's a very serious charge. It's a very frightening charge, and it does criminalize a lot of things that most people understand to be protected by the First Amendment.

incompatible with constitutional norms under the First Amendment. It's an important thing to be aware of, but it would be very surprising to me if the government were able to successfully make broad claims connecting quote Antifa to foreign terrorist organizations.

to belabor this. Can we talk about the distinction between domestic terrorist organization, which is a classification that doesn't exist, versus the charge of committing terrorism because people who get terrorism enhancements at least like the Maryus Mason one example that comes to my mind, right, who is a member of cell that was associated with the Earth Liberation Front like so that that person got over two decades in prison based on being convicted of crimes that existed and

then getting enhancements based on the definition that those were terrorists, amplifying the amount of time.

of conduct that you are convicted of. If you engage in certain illegal acts and a judge determines that those acts were motivated by desire to do terrorism, that the penalty for engaging in those acts can be enhanced. But you cannot designate a group of belief or an expression as being a crime in itself unless there is conduct

associated with it, because we don't criminalize people's identities. I mean, we do criminalize people's identities, but it's impermissible to prosecute people for having those identities.

stated it, conceive of the state's view of us? How do we rally support for our identities and positions, what are some good practices understanding, Like, having had this conversation, the terrain on which we're operating.

an aberration. I would say, Look, this administration is preoccupied with the funding streams for very mainstream liberal causes, and the fact that it's sort of lumping everything under the banner of antifa, you know, is probably a big surprise for some of these groups, like you know, suburban white

moms against guns or whatever. But they are very focused on things like wirefraud and money laundering and stripping nonprofits of their tax status if there's even a whisper of the possibility that those nonprofits are pursuing goals that are in any way antagonistic to state interests. So, if you are in a group that has a bank account or raises money, the best practices here haven't changed. Keep very

precise track of your funds. If you raise money, use it for that they knew said you were going to use it for. Have an accountant, you know, be very very careful about your money. And again, the best practices for the rest of us also haven't changed. This is political discourse that reaffirms what we already know about targeted surveillance, and we have for a long time known how to

deal with this. If you are approached by law enforcement, remember that the Fifth Amendment protects your right not to speak to them. You have no obligation to speak to law enforcement. It is a crime to light of federal agents, and that means that it is safest not to say anything. Besides, I'm represented by counsel. Please leave your name a number, and my lawyer will call you. There is truly never a compelling reason to speak to federal agents before consulting

with an attorney. The Energy Anti Repression Hotline can be reached at two one two six seven nine two eight one one. You can call to have a free, privileged conversation about your rights, risks, and responsibilities and to be

connected with appropriate legal resources in your area. And at the end of the day, we keep ourselves safe by refusing to submit to this fear, refusing to comply in advance, refusing to second guess whether we actually have rights, and more importantly, we persist by being confident in the fact that, no matter what, our communities are going to rally around and care for each other.