Updated at 6:40 p.m. ET on April 23, 2021.
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 kill police officers, as members of the Capitol mob reportedly did. 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.
- Some in positions of power have called for adding the names of alleged Capitol-riot participants to the no-fly list before they are charged, let alone convicted. “Given the heinous domestic terrorist attack on the U.S. Capitol yesterday, I am urging the Transportation Security Administration and the Federal Bureau of Investigation to use their authorities to add the names of all identified individuals involved in the attack to the federal no-fly list and keep them off planes,” said the Democratic Representative Bennie Thompson. “This is an action that TSA and the FBI, by law, are able to take but, to my knowledge, have not yet taken.” Many on social media echoed the suggestion and gleefully cheered a TikTok video purporting to show a “Stop the Steal” participant complaining about his removal from a flight.
If sufficient evidence proves that someone stormed the Capitol, then he or she should be arrested, charged, given the ability to retain counsel, and tried in a court of law. But hasty pretrial punishments without due process are unacceptable, and social-media mobs amplifying claims that someone is known to be guilty are likely to ensnare innocents too.
- Voters ought to punish members of Congress who spread misinformation about the 2020 election and objected to the certification of electoral votes. But I’m alarmed by calls from some Democrats to expel those GOP lawmakers––a step that would deprive their constituents of their duly elected representatives in the name of safeguarding democracy. Expulsion isn’t always inappropriate, despite being antidemocratic. For example, if evidence emerges that a member of Congress helped insurrectionists infiltrate the Capitol, or texted them the location of a threatened colleague, that would be grounds for expulsion. But expelling a member for voting against certification would set a dangerous precedent and radicalize many.
No one has the right to incite mobs, coordinate insurrection, or engage in political violence. Indeed, it is imperative to punish all known to engage in such behavior, whether it manifests as Trump supporters storming the U.S. Capital or antifa members setting a federal courthouse on fire or adherents of the most noble ends adopting terrorizing means. But Americans do have a right to form coalitions, support candidates, and voice opinions that their fellow citizens find odious.
Conserving the ability to exercise those rights is vital. If tens of millions of Americans are stymied from even nonviolent participation in politics or civic discourse, whether by the state or by corporations, representative democracy will cease to function as a means of addressing grievances, and more political violence will ensue. As state officials and private companies crack down on violent insurrectionists, they should demonstrate, in words and deeds, that they care about civil liberties and the ability of all who eschew violence to participate meaningfully in civic life.
*This article originally stated that the Capitol insurrectionists had killed a Capitol police officer. While initial reports suggested that Officer Brian Sicknick died of injuries sustained during the attack, on April 19, Washington, D.C.'s chief medical examiner released a report finding that Sicknick had experienced two strokes and died of natural causes. The article has been updated to reflect that the cause of Sicknick's death had not yet been confirmed at the time of publication.