While there is no separate federal crime of “domestic terrorism” in the United States, there is a crime of domestic terrorism in many U.S. states. In recent years, the use and content of these state terrorism laws have witnessed a significant shift, raising new threats to First Amendment rights. The International Center for Not-for-Profit Law (ICNL), where I work, released a new report on these laws today.
A majority of states – 32 states and Washington DC – have the crime of domestic terrorism. Further, 21 states and DC criminalize assisting or supporting terrorism, and 25 states have a separate crime of terroristic threat. Most of these state domestic terrorism laws were enacted in the wake of 9/11. They traditionally were relatively rarely enforced as crimes of political violence can, and have been, prosecuted by federal or state officials using other criminal law provisions. However, as concerns about terrorism have evolved in the United States, these laws have taken on an increasingly prominent and often politicized role.
Prosecutors in Georgia brought charges last year using its state domestic terrorism law against dozens of activists protesting a proposed law enforcement training facility near Atlanta, dubbed “Cop City.” While this case has progressed further than others, this targeting of protest-related activity is not a new occurrence. In the last few years, authorities in Oklahoma, New York, Louisiana, and Florida have all used domestic terrorism laws in the context of protests or activism. Meanwhile, three states – Texas, North Dakota, and Oregon – adopted domestic terrorism laws for the first time in 2023, signaling new interest in these laws. And in the 2024 legislative session, at least 15 states have considered changes to their domestic terrorism laws, many in response to pro-Palestine protests.
Since political violence is already criminalized under other state and federal laws, state domestic terrorism laws are arguably unnecessary. In addition, these laws create serious, and often underappreciated, civil liberties concerns, particularly in relation to the freedoms of speech, assembly, and association. State domestic terrorism laws are frequently overbroad and trigger severe penalties that have been used in multiple states to target individuals, including nonviolent activists, in activity not typically associated with terrorism. Policymakers in both major political parties though are only slowly waking up to the danger these laws can pose.
State Domestic Terrorism Laws and Protests
The high-profile use of Georgia’s state terrorism law in charges against Cop City activists highlights some of the First Amendment concerns domestic terrorism legislation raises. In an indictment handed down by the Georgia Attorney General’s office in July 2023, 61 people, including a legal observer from the Southern Poverty Law Center, were charged with racketeering for engaging together to prevent the construction of a police training center on public forest land. During a music festival on the forest land in March 2023, at least a hundred people had walked to the construction site, where some knocked over a fence, threw rocks, and burned equipment. For many of the defendants, the indictment stated that they joined the group at the construction site, “thereby aiding and abetting in the offense of arson and domestic terrorism.” In the same indictment, five individuals were charged with domestic terrorism arising out of a separate protest in January 2023 that was sparked by the law enforcement killing of a protester occupying the forest land. The indictment alleged that these five attempted to commit arson against critical infrastructure, including police vehicles, as they were arrested with accelerant.
Under Georgia law, the predicate crime of domestic terrorism is a felony intended to cause serious bodily harm or to disable or destroy “critical infrastructure.” “Critical infrastructure” is defined broadly to include any publicly or privately owned “facilities, systems, functions, or assets” providing services to the public. Georgia’s domestic terrorism law, like almost all other state terrorism statutes, also has an intent requirement, which can be met by committing the predicate offense with the intent to intimidate a civilian population or to alter or coerce government policy. In Georgia, terrorism is a felony punishable by a minimum of five years and up to life imprisonment.
While Georgia’s domestic terrorism law has been challenged for being vague and overbroad, some state domestic terrorism laws are even broader. In Oklahoma, for example, a predicate offense for domestic terrorism includes any act of violence that results in damage to property or the threat of such violence, including even minor property damage. The offense is punishable by up to life in jail. In Tennessee the predicate crime for domestic terrorism can be literally any crime, including a relatively minor offense like obstructing a sidewalk or disorderly conduct. The offense is punishable by 15 to 60 years in jail.
These broad definitions of domestic terrorism have repeatedly been used by law enforcement in protest contexts. In Oklahoma, a prosecutor charged five individuals, including three teenagers, with domestic terrorism in 2020 for alleged property destruction connected with a Black Lives Matter demonstration—a charge that critics claim was used to intimidate protesters. In New York City, police arrested a group of fourteen protesters for domestic terrorism in 2023 for delaying a subway train. The police claimed that in blocking the train they had engaged in first degree tampering, a predicate offense under the state’s domestic terrorism statute.
Lawmakers have also worked to expand domestic terrorism laws in response to protest movements. In 2021, for instance, Arkansas amended its law to include damage to public monuments as a predicate crime for domestic terrorism after Black Lives Matter protests in which demonstrators had toppled or vandalized confederate monuments. In the wake of protests over Israel’s invasion of Gaza that began in late 2023, several states proposed changing their domestic terrorism laws, including lawmakers in New York who introduced a bill in 2024 that would create a new felony domestic terrorism offense for obstructing roads or sidewalks in a manner that deliberately blocks traffic.
Support for Terrorism and Terroristic Threats
Many states have not just a crime of domestic terrorism, but also crimes of terroristic threat or material support for terrorism. Both of these crimes also come into potential conflict with the freedoms of speech, association, and assembly.
Law enforcement in Louisiana, for example, charged two female environmental activists in 2020 under state law with “terrorizing,” after they engaged in a publicity stunt in which they left a bucket of plastic pellets on the porch of the house of a chemical industry lobbyist. The activists claimed the plastic pellets were from a chemical factory that had dumped them into the Gulf of Mexico. This crime of terroristic threat in Louisiana is punishable by up to 15 years in jail.
The broad language of material support provisions also creates the potential for politicization. In late 2023, at the urging of Governor Ron DeSantis, the head of the Florida state university system ordered public universities to disband state campus groups linked to Students for Justice in Palestine (SJP), claiming that SJP was in violation of Florida’s material support of terrorism law for statements that were supportive of the actions of Hamas (a federally designated foreign terrorist organization). Critics pointed out the state chapters of SJP were autonomous from the national organization and their activism for Palestine was protected under the First Amendment. Civil liberties groups sued to challenge the order, and the Florida government eventually backed away from efforts to disband the state groups. Providing “material support” to a terrorist organization is a felony under Florida law punishable by up to 30 years in jail.
Significantly, Florida, like some other states, criminalizes not just material support to a federally designated foreign terrorist organization, but also material support for any act of domestic terrorism. Since domestic terrorism is defined so broadly in some states to potentially include acts like purposefully delaying a train or even engaging in a sit in, these provisions can potentially capture people who never engaged in violence or even thought they were connected with terrorism.
Moving Forward
While most state domestic terrorism laws were passed in the wake of 9/11, many have been enacted or amended more recently. The motivations of legislators have been tellingly diverse, highlighting a lack of political consensus about the target of these laws.
Last year, for instance, lawmakers in Texas enacted domestic terrorism legislation to fill a claimed legislative gap and after Governor Abbott had designated Mexican drug cartels as terrorist organizations in 2022. This is part of a larger Republican push to have drug cartels designated as terrorist organizations by the federal government. Meanwhile, lawmakers in West Virginia have repeatedly introduced a bill, including this session, that would criminalize “terrorist violent mass action” in response to fears about antifa and other protest groups.
Those on both sides of the aisle have reasons to be concerned about the increasing turn towards state domestic terrorism laws. After the September 11th attacks, the Muslim, Arab, and South Asian communities bore a disproportionate brunt of surveillance and investigations in the name of fighting terrorism, often based on thin evidence and racial or religious profiling. In recent years, the label of terrorism has been applied by federal officials and politicians against members of a varied range of groups, including Black Lives Matter activists, abortion activists, environmental activists, anti-government proponents, Trump supporters, white supremacists, individuals associated with antifa, and pro-Palestine protesters.
This labeling of a broad set of groups and individuals by officials as potential terrorists is a source of concern as more groups and individuals may become targets of state domestic terrorism laws in a politicized manner. However, the more unrestrained use of this label can also potentially create a larger constituency for reform. In North Dakota, lawmakers enacted a domestic terrorism law in 2023 out of concern that the crime of terrorism was being ”weaponized” against conservative voices. Specifically, the law’s sponsors claimed their bill was in response to a letter that the National School Board Association sent to the FBI asking them to potentially investigate as domestic terrorists conservative parents who had sometimes made threatening statements at school board meetings. The enacted North Dakota law defines domestic terrorism to only include crimes done in cooperation with federally designated international terrorist organizations to try to limit the offense to these transnational contexts and not apply it against purely domestic actors.
This year, the Idaho state senate passed a similar law to North Dakota’s out of fear law enforcement may target groups like Moms for Liberty as domestic terrorists. Meanwhile, a number of proposed amendments that would have strengthened state terrorism laws in the wake of pro-Palestine protests did not pass, in part because of their First Amendment implications.
The broad provisions of state domestic terrorism laws empower law enforcement to use them in a discretionary manner. This has already created a climate of fear amongst activists and protesters in the United States. Moving forward, state lawmakers should prioritize First Amendment and other civil liberties concerns when considering domestic terrorism legislation.
The experiences of states with domestic terrorism laws should serve as a warning to those who have advocated for a separate federal crime of domestic terrorism. So far, such a push has failed to move forward largely because a federal crime of domestic terrorism is arguably unnecessary given that political violence is already a crime and because such proposals often raise serious First Amendment concerns. However, state experiences with domestic terrorism laws also provide additional evidence about how such a federal law could become politicized.
As even more groups are impacted by these state terrorism laws on both the political left and right, there is an opportunity for a broader political consensus to emerge around a more targeted approach to combatting political violence. This vision for combatting political violence should be clear about the dangers these state laws create to our First Amendment protected rights.
– Nick Robinson (@NLR100) is a Senior Legal Advisor at the International Center for Not-for-Profit Law (ICNL). Published courtesy of Just Security.
