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The legal line connecting the Chicago Seven to January 6th
David Fenton / Getty After the political violence encouraged by Donald Trump and his allies, the government is now launching an absolutely necessary enforcement offensive against the growing threat of right-wing terrorism. Some argue that domestic persecution of extremists will inevitably lead the Justice Department to face a problem the nation has faced repeatedly since its inception: how should we draw the line between legitimate political dissent and criminal behavior? Over 50 years ago, Richard Nixon’s Justice Department brought a then-new anti-riot act against a diverse group of left-wing political activists, accusing them of being responsible for violence under the 1968 Democratic Convention. As the resulting trial of the Chicago Seven showed, the violence was indeed the work of the Chicago Police Department. Indeed, the defendants and their attorney – including Yippie activists Abbie Hoffman and Jerry Rubin, were the eighth defendant and co-founder of the Black Panther Party, Bobby Seale (whom the judge chained and gagged during the trial before the indictment against him) eventually dropped). – The trial was used as a national stage to demonstrate that it was indeed the police who planned and carried out a brutal and violent uprising against largely peaceful demonstrators. While the Chicago Seven posed no real threat, their case – and previous cases of other politically charged law enforcement – are once again becoming highly relevant as law enforcement agencies face an entirely different and very real threat from politically motivated right-wing violence. Timely “Chicago 7 Trial” is MovieLast’s best new week of the week Former US Acting Attorney Michael Sherwin said the government is considering indicting some of those in the January 6 uprising of incitement to rebellion against the state, an indictment seldom brought up since the middle of the last century. Sherwin’s testimony that hate speech charges may be on the horizon has been greeted with howl of anger by many on the right, some of whom have warned for weeks that, as Tucker Carlson put it, the Biden administration – as did, “I have it told you “it is preparing to establish a” police state “. George Pierre Tanios is watching a video of the January 6th Washington Capitol storm shown during his hearing in this Clarksburg, West Virginia, U.S. courtroom on March 22, 2021, sketch from a video feed REUTERS / Jane Rosenberg “REUTERS But the prospect of sedition charges has also worried many in the civil liberties community for good reason. The history of the criminal sedition charge in this country is long and shameful, dating back to the prosecution of Jeffersonian newspaper owners and other political opponents during the presidency of John Adams. President Lincoln was also known to have been charged with high treason and suspended the habeas corpus letter while imprisoning Confederate sympathizers. During the first red fear of the last century, a riot law was passed against leftist opponents of World War I in 1918, including socialist leader Eugene V. Debs, who was convicted and convicted of conscription. Communist Party members have been charged under the infamous Smith Act, which the Supreme Court upheld despite its proven use as a target for unfavorable speakers for their political opinions and utterances. The expedition laws are not the only laws that have been used to punish people for political activities, including those belonging to racial minorities or left-wing organizations. The Chicago Seven were indicted under the long-controversial Anti-Riot Act of 1968, known colloquially as the H. Rap Brown Law. Brown was a civil rights activist and was for a time chairman of the Student Nonviolent Coordinating Committee and attorney general for the Black Panthers. It was also a primary target of COINTELPRO, a covert FBI program that for years used extortion, surveillance and other tactics against groups and individuals from Martin Luther King to the Weatherman Organization and the Panthers. In 1967, after the FBI identified Brown as a target of “neutralization,” he was charged and prosecuted for carrying a weapon across state lines and inciting a riot. Brown’s prosecution inspired segregationists and other “law and order” proponents to incorporate the anti-riot bill into a 1968 fair housing bill. The law criminalizes, among other things, traveling in or use of instruments of international trade in connection with inciting or organizing a riot. After several of the Chicago Seven were convicted under the law, they argued in an appeals court that the law was entirely unconstitutional because it effectively criminalized constitutional political speech and gathering. While the court rejected this argument, a member of the three-judge panel, George Pell, a Nixon-appointed representative, disagreed on the grounds that the law wrongly penalized the exercise of rights protected by the first amendment. Judge Pell quoted the recent terrorist attack against Israeli athletes at the 1972 Olympic Games in Munich and warned: “The shock will undoubtedly be followed by the popular demand for the suppression of violence as a political weapon. An ideal state of civilization should not put anyone in danger of perishing. However, to achieve this state of affairs by suppressing the free exchange of ideas and beliefs would be a pyrrhic sacrifice of a precious freedom for an illusory security. “The H. Rap Brown bill continued to be controversial for the decades that followed, particularly among civil rights activists, many of whom long shared Judge Pell’s view that the statute is untenable for punishing political expression. But prosecutors have continued to bring charges against the law on occasion – and some of the targets would have been unfortunate surprises for the segregationists who proposed the law. In the past few years, at least two appeals courts have upheld cases against white supremacists of H. Rap Brown against Constitutional Challenges. In particular, however, the same courts have scaled back the scope of the law, ruling that a provision that criminalizes “urging” others to riot is contrary to the Constitution, while the remaining provisions that criminalize incitement and participation in rioting, be respected. More recently, a number of extremists allegedly participating in and organizing the January 6 attack on the Capitol have been indicted under the law. But white supremacists and suspected right-wing terrorists aren’t the only defendants recently prosecuted under the controversial 1968 Act. The DOJ has also brought charges against some of the people charged with violence during protests against racist policing last summer, including in Portland, Oregon. Now, in a curious coincidence of legal events, some of the Oregon defendants, as well as some of the defendants in the Jan. 6 attack, are likely to aggressively challenge H. Rap Brown’s law and – if they remain faithful to the positions they have held for decades – some civil libertarians are likely to argue for the defendants in both the DC and Oregon cases. The DOJ should use the law enforcement tools at its disposal when appropriate, although some of those tools are controversial. However, discretion can also advise against using some of these tools. Many domestic terrorists – such as those who invaded the Capitol – may have engaged in conduct that fits the legal definition of a crime such as rioting. Typically, they are also thugs who have engaged in conduct that contradicts other more secular but often serious crimes, including violent crimes such as assaulting police officers, which open up the possibility of severe penalties. Accordingly, in many cases, the government does not have to resort to laws like the Anti-Riot Act or the Riot Acts to prosecute and convict the individuals charged with crimes that sentence them to substantial prison terms, which means the Department of Justice in cases who actually violated such laws should refrain from using tools such as the Anti-Riot Act or the Riot Acts. This is otherwise appropriate, given the history of abuse of this law enforcement tool, whether under Presidents Adams or Nixon. However, there are good legal and political reasons to consider avoiding charges based on such seldom-applied and frankly somewhat corrupt laws when other options are available. As many politically accused law enforcement agencies have shown in the past, a defendant is charged What amounts to a political crime can give the defendant and his allies an opportunity to earn propaganda points against the government. This is especially true when, like Abbie Hoffman and the other members of the Chicago Seven, those in the dock are completely innocent of the charges brought against them. But even people who are actually guilty of crimes such as seditious schemes to overthrow the government have more than occasionally managed to turn their trials and subsequent sentences into theatrical demonstrations of their own political ills. It is best known that Adolf Hitler’s 1923 Munich putsch and subsequent prison – during which he began writing Mein Kampf – became the source of the myth on which the NSDAP ultimately founded the takeover of the German government by propagandists such as Tucker Carlson and Donald Trump even wait with bated breath for a show trial in which they can try to demonstrate that the government has turned against the people. Carlson is now warning that “collective punishment is now the official policy of the federal government,” and Trump recently stated on Fox News that “they are pursuing some of the Jan. 6 insurgents,” whom he called indifferent police officers, some members of the mob actually hit, knocked down, and possibly even killed on the head. As a general practice, it is best to ensure that the charge best fits the actual nature of the crime. For example, Professor Laurence Tribe has stated that the leaders of what most of the people in the country recognize as the Capitol Rebellion could be indicted under a post-civil war criminal insurgency law. Furthermore, the good news is that violent terrorists tend to commit many crimes, and there is no reason for the government to fall into the trap of allowing the guilty and their allies to have their criminal cases appear as political show trials leave more at The Daily Beast. Get our top stories in your inbox every day. Sign up now! Daily Beast Membership: Beast Inside delves deeper into the stories that matter to you. Learn more.