How media coverage of terrorism endorses a legal double standard

Photo: Jeff Hutchens (Getty)

On June 17, 2016, Dylann Roof entered a predominantly black church In Charleston, South Carolina, and opened fire. When he was done, nine people lay dead around him. For a few days after Roof’s grisly act, a debate raged in the media over whether the committed white supremacist and mass murderer should be considered a terrorist. Many, including The Washington Post’s Philip Bump, vehemently opposed the label, insisting that even though the Justice Department had dubbed Roof’s killing spree “an act of domestic terrorism,” calling Roof a terrorist would confer upon him the very notoriety he sought.


For an act, however bloody and hateful, to be considered terrorism in the United States, it must be connected to a ‘foreign’ terror organization.


“What if we laughed at him instead of telling him he scared us?” Bump wrote. “What if we throw him into prison for the rest of his life and forget about him and his desperate jacket and his desperate license plate and his desperate, terrible life?”

Like other journalists and analysts, Bump analyzed the sociological and ethical dimensions of the terror label, concerns about whether all who terrify are terrorists, and whether the wider application of the label somehow lessens the potency of the evil it represents. However, like nearly all other journalists who write about terrorism, Bump missed the most crucial point concerning the media’s use of the term: that American law does not currently recognize “domestic terror” as a crime. For an act, however bloody and hateful, to be considered terrorism in the United States, it must be connected to a “foreign” terror organization.


If the same standards were applied to white supremacist and other anti-government groups as are used in cases of assailants inspired by ‘foreign’ terror organizations, other Trump supporters and arguably the candidate himself could be similarly charged.

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It is a costly omission whose impact is visible in the venomous electoral rhetoric witnessed over the past year. Were it not for the “foreign” requirement, a Trump supporter who yelled “Kill All Muslims” outside a rally this spring could have been charged under the Material Support for Terrorism statute. Indeed, if the same standards were applied to white supremacist and other anti-government groups as are used in cases of assailants inspired by “foreign” terror organizations, other Trump supporters and arguably the candidate himself could be similarly charged. But the Material Support for Terrorism statute does not apply to them, as it does not apply to Dylann Roof, Aurora theater shooter James Holmes, or anyone else whose hatred is purely domestically bred, even if it kills or threatens to kill dozens or thousands of people.

Journalists are deeply committed to the First Amendment freedoms that permit them to do their jobs. Yet they have failed to explore how First Amendment protections are being disparately applied, exacerbating the threat posed by one group and underplaying another. In the 2014 Supreme Court case Elonis v United States, a man posting threats on Facebook about wanting to kill his wife, commit violence against co-workers, and shoot a kindergarten class was considered to be engaging in speech protected by the First Amendment. The possibility that he might have made the threats negligently or accidentally was central to the Court’s consideration. At the same time, under US v. Mehanna, simply posting a translation of jihadist material on a website was sufficient proof of culpability and grounds for a 39-year prison sentence. Cases are currently being tried under the Material Support for Terrorism statute in which the only suspect activities are reposts or retweets on social media platforms. There is no provision in the law requiring prosecutors to show that the poster intended to post, or was even aware of the material’s content prior to posting it.


While retweets and reposts are considered adequate grounds for conviction under the Material Support for Terrorism statute, actual murders are not enough to merit charges under federal hate crime laws.


But while retweets and reposts are considered adequate grounds for conviction under the Material Support for Terrorism statute, actual murders are not enough to merit charges under federal hate crime laws. This summer’s killing of a Bangladeshi Muslim imam and his assistant in Queens, New York, is not being tried as a hate crime. In simple terms, domestic terror, currently labeled a hate crime, requires an ever-higher standard of proof and is rarely pursued by prosecutors.

Categories and numbers provide proof of the reality of crimes. Since domestic terror does not exist as a legal category, it is essentially invisible, leaving only foreign terror to fill the gap. Meanwhile, the high standard of proof required under the hate crime statute means that few are charged with such crimes, leading to the erroneous conclusion that such individuals do not pose a significant threat.

The unequal legal regimes that punish online activities in support of foreign terror organizations as material support, yet permit online activities such as the consumption of hate propaganda generated within the United States, should trouble everyone. Assistant US Attorney General John Carlin has acknowledged the problems associated with the fact that no US law currently recognizes “domestic terrorism” as a crime, and that no legislation criminalizes material support for domestic terrorism. According to Carlin, who oversees national security at the Justice Department, “in the past few years more Americans have died at the hands of domestic extremists instead of international terror groups.


The inordinate focus on international terror has meant that a more pressing threat has been ignored.


The inordinate focus on international terror has meant that a more pressing threat has been ignored. Even more troubling, online activity preceding these acts–which inspires hatred and promotes violence–is not prosecuted under any legislation and largely enjoys the umbrella of protected speech under the First Amendment. “I am not in the position to, alone, go into the ghetto and fight,” South Carolina killer Dylann Roof wrote in an online manifesto. “I chose Charleston because it is [the] most historic city in my state, and at one time had the highest ratio of blacks to Whites in the country. We have no skinheads, no real KKK, no one doing anything but talking on the internet. Well someone has to have the bravery to take it to the real world, and I guess that has to be me.”

“Talking on the internet” is something white supremacists, including those with leanings toward mass murder, do. It is not, however, something that is currently punishable under US law–unless, that is, your affiliation is to a foreign terrorist group like Al Qaeda or ISIS. It is this architecture of subterfuge and discrimination that helps substantiate within the American imagination the premise that all terrorists are Muslims.

Even though terrorism is now a staple of the news cycle, American journalists have been unable or unwilling to expose how the legal definition of terrorism has led to the demonization of an entire religious minority. American Muslims are easy targets: few in number and largely unable to stem the tide of castigation and blame directed at them. It is the responsibility of journalists who formulate this debate to speak up on their behalf.

 

This article is adapted from a Tow report by the same author. It is part of a series on journalism and terrorism that is the product of a partnership between the Tow Center for Digital Journalism and Democracy Fund Voice.

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Rafia Zakaria is an attorney, human rights activist, and the author of The Upstairs Wife: An Intimate History of Pakistan (Beacon 2015), which was named one of Newsweek’s Top 10 non-fiction books of 2015. Her work has appeared in The Guardian Books, The New York Times Book Review, The New Republic, The New York Times, Al Jazeera America, Dissent, Guernica, and various other venues. Her next book will be published by Bloomsbury in 2017. She served on the Board of Amnesty International USA 2009-2015.