The Senate Judiciary Committee recently grilled Attorney General Merrick Garland over a wide range of issues, including the FBI’s targeting of traditional Catholics and the treatment of pro-life activists, while ignoring violence against crisis pregnancy centers.
Likewise, the House Committee on the Weaponization of the Federal Government heard testimony from journalists Matt Taibbi and Michael Shellenberger. Evident from the questioning of congressional Republicans is that the Department of Justice and the intelligence agencies have invaded territory protected by the First Amendment.
This belief is not far from the truth, as the Biden administration has tried to broadly reframe certain political speech as inciting violence or encouraging domestic extremism since 2022, at the latest.
Last year, the Department of Homeland Security issued three National Terrorism Advisory System bulletins — in February, June and November — each of which warned that threat actors can use current events or false or misleading information to “inspire violence, sow discord, or undermine U.S. democratic institutions.”
Similarly, the FBI issued guides linking known or accused extremists to constitutionally protected opinions.
Within the bulletins, the administration is smart enough not to directly criminalize the speech of Americans or to accuse them of being domestic extremists. Instead, it uses vague terms and guilt by association to warn that Americans sharing certain content encourage violence or extremism because “some domestic violent extremists have expressed grievances” or certain historical symbols “are often found” with extremists’ social media posts.
The administration thus uses the idea that some may express violent ideas as justification to investigate all similar expressions because others may act or encourage others to react violently.
With the administration’s mindset explained, what categories of speech does the Department of Homeland Security think could inspire violence or sow discord? Examples include:
• Opposition to COVID-19 “mitigation measures — particularly vaccine and mask mandates.”
• “False or misleading narratives about unsubstantiated election fraud.”
• Opinions related to “perception that the U.S. government is unwilling or unable to secure the U.S.-Mexico border.”
• “Individuals who advocate both for and against abortion.”
• Expressions of “grievances based on the perceptions that the government is overstepping its Constitutional authorities or failing to perform its duties.”
In response to the allegations that online speech can incite violence, the Department of Homeland Security, the FBI and the White House have worked together to operationalize the warnings in the bulletins or found in the executive memorandum. According to the bulletins, the agencies “share timely and actionable information and intelligence with the broadest possible audience.” And as is clear from Mr. Garland’s testimony, DOJ and the FBI use the information to target average Americans.
The Twitter Files and leaked FBI internal guidelines, for example, reveal how warnings against violent and extreme online opinions are operationalized.
According to FBI whistleblowers, internal guides reveal that the bureau believes sharing symbols such as the Betsy Ross flag, the Gadsden flag and Revolutionary War imagery encourages “Anti-Government or Anti-Authority Violent Extremists.”
A recently leaked document reveals that the FBI improperly relied on a report from the Southern Poverty Law Center, along with articles from Salon, to target certain Catholic groups suspected of promoting “ethnically motivated violent extremists” via social media and in-person places of worship. The guides thus likely serve as predicates to investigate anyone who may share historical American flags or who express support for “traditional Catholic ideology.”
There are the more prominent cases, as revealed by the Twitter Files, of coordinated efforts to suppress COVID-19 “misinformation,” which included criticism of vaccine mandates, allegations of fraud in the 2020 presidential election, and suppressing the New York Post’s Hunter Biden laptop story. Simply put, the government used threats of massive foreign misinformation and disinformation campaigns as gateways to create inroads with social media platforms, which then allowed officials to pressure companies into specific content moderation decisions.
The Biden administration’s efforts to redefine constitutionally protected speech as inciting violence or encouraging extremism violate the First Amendment, which protects people’s right to freely express themselves without fear of government reprisal.
Those efforts are not aimed at curbing criminal activity but at unleashing the government’s investigative weight on any who dare express politically incorrect opinions. As Congress seeks to protect Americans’ civil liberties by investigating overreach, it will need to first understand how subtle changes associating opinions with extremism can allow agencies to cast a broad segment of the American population as potentially dangerous to civil society.
• Jonathon Paul Hauenschild is policy counsel for Lincoln Network, where he studies the intersection of law and technology policy.