The Growing Threat of State Domestic Terrorism Laws to the First Amendment

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.

Archived at https://web.archive.org/web/20240906120919/https://www.justsecurity.org/99787/state-domestic-terrorism-laws/