Touted as an overdue (if duplicative) law that no one could disagree with, the Emmett Till Antilynching Act signed by President Biden last week includes a subtle provision that could boost the Biden administration’s war on wrongthink.
The bill sailed through the U.S. Senate and the House with ease. The tactful naming made the bill radioactive to oppose, which is why 422 congressmen voted in favor while only three opposed.
Rep. Thomas Massie, one of the three who voted against the bill, expressed a handful of concerns, including that there are a limited number of constitutionally specified federal crimes, that lynching is already criminalized, and that “Adding enhanced penalties for ‘hate’ [on top of existing criminal punishments] tends to endanger other liberties such as freedom of speech.”
He also highlighted another potential pitfall of the legislation: “The bill creates another federal crime of ‘conspiracy,’ which I’m concerned could be enforced overbroadly on people who are not perpetrators of a crime.” Here’s the section Massie is referring to:
Whoever conspires to commit any offense under paragraph (1), (2), or (3) shall, if death or serious bodily injury (as defined in section 2246 of this title) results from the offense, or if the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, be imprisoned for not more than 30 years, fined in accordance with this title, or both.
The bill amends the Hate Crimes Prevention Act, passed in 2009, which defines and criminalizes hate crimes. The minimum qualification is an attempt “to cause bodily injury” due to the victim’s race, sexual orientation, nationality, gender, religion, or disability.
Bodily injury can be defined as “physical pain” or “any other injury to the body, no matter how temporary.” Sensibly, the 2009 law requires an attempt at violence to be made, which is a crime itself regardless of prejudiced motives. The new “antilynching” law takes this a step further by criminalizing “conspiracy” to commit certain hate crimes.
I’m sure someone will retort: conspiracy to commit a federal crime is already a federal crime. This is not a universally accepted interpretation of conspiracy law, nor does the law’s language or historical precedent justify such a broad interpretation — hence the ostensible necessity for the new antilynching law. Criminalized conspiracies are those plotting “against the United States” – like the Volkswagen executives who attempted to defraud the Environmental Protection Agency by faking emission results and, more recently, the leader of the Oath Keepers who plead guilty to seditious conspiracy for his part in the Jan. 6, 2021 riot.
So as of last Tuesday, it is illegal to simply “agree” to participate in an act if it falls under the categories highlighted above. One can imagine dark political humor venturing into these categories (a comment such as “I hate so-and-so so much I could kill him,” for example) being interpreted as “conspiring to lynch.”
The key issue here is that intent should not be the sole subject of a court case. The purpose of courts is for a neutral arbiter to determine whether someone’s rights were violated during an encounter between two parties. Conspiracy, if no action is taken in pursuit of it, involves only one party: the conspirators. Therefore, it alone constitutes no crime as it couldn’t have possibly violated someone else’s rights.
With this new law, the U.S. government has further expanded into the realm of policing thought crimes. Ominously, this law comes on the heels of the Department of Homeland Security’s attempt to broaden the “domestic terrorism” category and expand methods for identifying “threats.”
For those unaware, killings attributed to domestic extremists in 2020 and 2021 were each far lower than in the previous five years. Overall there were only 29 such killings in 2021. Despite this, we continue to hear fearmongering from those in power.
FBI Director Christopher Wray went before Congress last year to declare “The problem of domestic terrorism has been metastasizing across the country for a number of years.” Attorney General Merrick Garland adopted a similar tone, warning “Domestic violent extremists pose an elevated threat in 2021, and in the FBI’s view, the top domestic violent extremist threat we face comes from racially or ethnically motivated violent extremists, specifically those who advocate for the superiority of the white race.”
“Domestic violent extremism poses the most lethal and persistent terrorism-related threat to our country today,” claimed Homeland Security Secretary Alejandro Mayorkas last spring. A White House press release added: “The two most lethal elements of today’s domestic terrorism threat are (1) racially or ethnically motivated violent extremists who advocate for the superiority of the white race and (2) anti-government or anti-authority violent extremists, such as militia violent extremists.”
It’s a mountain-out-of-a-molehill on par with the “Don’t Say Gay” hysteria. But this one may have far greater consequences down the road as texts, emails, social media posts, and everyday speech are monitored and analyzed by various three-letter agencies to establish the intent of our discourse. The Emmett Till Act may become a key piece in the arsenal for U.S. intelligence agencies’ war on free speech.