Attempts by President Donald Trump and his insurrectionist supporters to overturn the results of the 2020 election are infuriating, tantamount to an attack on the heart of American democracy. Death threats against Vice President Mike Pence, House Speaker Nancy Pelosi, and others illustrate how much worse things could have been amid the chaos. To safeguard the rule of law and to deter future violence, the Capitol lawbreakers must be brought to justice. And politicians who fueled false beliefs that the election was stolen ought to be voted out of office. Their bad-faith pandering harmed the country.
There is, however, another imperative: Members of the supermajority who disdain the attack on the Capitol must keep their heads. Precisely because the transgression was outrageous, clouded judgment is likely, as are responses that do more harm than good, including to innocent people. Here are four areas of concern:
- For months, President-elect Joe Biden has been considering new laws against domestic terrorism. Immediately after the storming of the Capitol, he called the insurrectionists “terrorists.” Norman Ornstein, an American Enterprise Institute scholar and Atlantic contributor, tweeted that “the House must as an immediate step pass a domestic terrorism statute, with a focus on white supremacist terrorism, and send it to the Senate,” arguing that “the FBI is very limited in what it can do because domestic terrorism is not a category in the way that foreign Islamic terrorism is. I want white supremacist groups treated the same.” But the anti-Islamic-terrorism model has too many problems to justify emulating it. After the 9/11 attacks, accused Islamist terrorists were tortured, put on secret kill lists, rendered to a secret prison system, and held for years without charges or trial. What’s more, existing laws appear sufficient to charge, convict, and sentence the men and women who breached the Capitol building. Let’s see how they work before judging them too weak. Certain provisions of current law could, moreover, already lead to overcharging. Murder charges are appropriate for insurrectionists who killed a police officer. But Democratic Representative Ted Lieu suggested charging that crime more broadly. “Every single #MAGA rioter who committed a felony in relation to the death of the US Capitol police officer can be charged with felony murder,” he tweeted. As Scott Shackford explains at Reason, “He’s referring to the rule of felony murder, a legal doctrine that allows prosecutors to charge a person with murder if somebody dies during the commission of a felony, even if the offender played no role in the person’s death and did not intend for anybody to die.” As Shackford argues, the felony-murder rule is frequently, if not always, unjust: “We should not be convicting people of murder when they did not, in fact, commit murder.”
- Twitter’s decision to permanently ban Trump is highly defensible. Trump has long been excused for violating terms of service in ways that would get most Americans banned. And even those who favor a unrestrained culture of free speech and consistently oppose deplatforming for political beliefs can simultaneously conclude that trying to overturn an election is beyond the pale. By acting only after the Capitol riot, moreover, Twitter arguably avoided many slippery-slope concerns. (That was an unprecedented and extreme event.) Still, the fact that German Chancellor Angela Merkel and Russian opposition leader Alexei Navalny both find the ban worrisome ought to spur debate and careful reflection. Twitter should reassure Americans on the right that so long as they abide by the terms of service, they won’t be banned, censored, or treated more harshly than others.
Twitter was not the only tech company to deplatform Trump or to crack down on speech perceived as dangerous. Apple, Google, and Amazon Web Services all moved against Parler, a social-media app that many on the right use as an alternative to Twitter, apparently for insufficient moderation of posts. According to The New York Times, “In a letter to Parler on Saturday, Amazon said that it had sent the company 98 examples of posts on its site that encouraged violence and that many remained active.”
Parler uses a jury system to moderate posts. (Its CEO describes it to the Times’s Kara Swisher here.) Its approach may or may not be inferior to that of its rivals. But posts encouraging violence or violating terms of service frequently appear on all social-media platforms. So 98 offending examples hardly seem sufficient to justify the most powerful players in tech moving in lockstep against an upstart social-media company. With respect to the storming of the Capitol, did Parler really play a bigger role than Twitter, the platform where Trump has spent years flagrantly lying to the public? Is Parler’s removal from app stores really grounded in its harmfulness or potential to cause harm? At the very least, Parler’s treatment warrants more scrutiny, rather than the reflexive cheerleading among those with distaste, fair or unfair, for Parler users. It is proper to censor calls to violence. Going beyond that and depriving Trumpists of their preferred social-media platform could drive many to more cloistered digital spaces that are more extreme, less visible to outside monitors, and likely to result in more radicalization, not less.