The Anti-Klan Act in the Twenty-First Century

Racial terrorism by organized hate groups and “lone wolf” vigilantes presents a growing societal danger. Increasingly, the planning and recruitment for such plots occur through online communications channels. This Essay sheds new light upon how little-known federal civil rights statutes originally enacted following the Civil War can be applied to the use of online platforms in planning and discussing racially motivated attacks. The Ku Klux Klan Act of 1871 gave rise to 42 U.S.C. §§ 1985 and 1986, still in effect today. Section 1985 provides a federal civil cause of action against persons who conspire to deprive a person of federally protected civil rights. Section 1986, which is the focus of this Essay, provides a cause of action against persons who are aware of a § 1985 conspiracy yet fail to act to prevent it from being carried into action.

This Essay first reviews the background, text, and legislative history of §§ 1985 and 1986. The Essay next draws upon sociological research illuminating the nature of the contemporary white-supremacist movement and the manner in which white supremacists utilize online communications platforms, which make it difficult for outsiders to become aware of and to disrupt conspiracies before they come to fruition. This Essay then discusses how § 1986 can be used as a tool to incentivize insiders and bystanders who are part of online networks where such plots are discussed to report and disrupt them before they manifest, drawing upon the law and psychology literature regarding bystander motivations and behavior. Finally, the Essay discusses potential First Amendment compelled speech challenges to § 1986 suits. This Essay concludes that § 1986 can and should be utilized more widely to combat white-supremacist terrorism.

Introduction

The resurgence of violent extremism is at a critical inflection point. 1 In particular, racialized violence both by organized groups and by individuals presents a serious and growing threat. 2 Such groups and individuals have increasingly utilized online channels of communication to organize and to prepare for action. 3 Radicalized groups are often largely opaque and impenetrable to outsiders due to their closed networks, group solidarity, 4 and coded language or symbology. 5 Moreover, law enforcement officials generally cannot engage in preemptive surveillance or interception of online communications based solely upon extremist ideology. 6

Knowledge of the threats posed by such groups therefore often does not come in sufficient time to prevent attacks or to disrupt recruitment and radicalization. 7 Insiders, then, are the persons most likely to have sufficient advance knowledge of groups and individuals who are preparing to cross the line from radical ideology to terrorist action, even if these insiders do not themselves intend to engage in such action. 8 Insiders, however, generally share the ideology of the radicalized groups and individuals, or at least have sufficient affinity for them as to be unlikely to report or disrupt their plots absent strong countervailing incentives. 9

A wide array of legal tools can and should be brought to bear in the current fight against racial terrorism. One such set of tools derives from an earlier era of racial terror: the fight after slavery against white mobs, individual vigilantes, and terrorist organizations such as the Ku Klux Klan. Several civil rights statutes enacted in the wake of the Civil War pursuant to Congress’s powers under the Reconstruction Amendments —that is, the Thirteenth, Fourteenth, and Fifteenth Amendments — aimed specifically to deter and punish those who sought to use private violence as an alternate means of enforcing white supremacy and Black subjugation once chattel slavery had been abolished and racially subordinating laws had been rendered illegal in law (if not always in fact).

This Essay focuses upon two such federal statutes originally enacted as part of the Ku Klux Klan Act of 1871 10 : 42 U.S.C. §§ 1985 and 1986. Section 1985 provides a federal civil cause of action against those who conspire to deprive a person of federally protected civil rights; 11 § 1986 provides a cause of action against those who are aware of such a conspiracy yet fail to act to prevent it from being carried into action. 12 The Reconstruction Congresses that debated and adopted these provisions were well aware that the preceding centuries of slavery, racial violence, and Black subjugation had been carried out through an interlocking web of governmental and private action. They therefore knew that fully realizing the civil rights promised by the Reconstruction Amendments would require a similarly robust system of public and private action. Just as the regime of American slavery, apartheid, and racial terror could not have been enforced through state action alone, neither would dismantling that regime be possible through state action alone.

This Essay builds upon Professor Linda Fisher’s masterful article Anatomy of an Affirmative Duty to Protect: 42 U.S.C. Section 1986 13 by (1) updating its findings for the digital age and (2) bringing to bear interdisciplinary insights from the fields of sociology and psychology to describe how § 1986 can be applied to bystanders who are aware of white-supremacist individuals’ and groups’ use of online platforms to plan and discuss their plots. Part I of this Essay reviews the history of slavery and of the Reconstruction Amendments, which were the background for the civil rights statutes enacted in the wake of the Civil War. Part II then explores those civil rights statutes, with a particular focus upon the purposes and history of §§ 1985 and 1986. Part III of this Essay, drawing upon sociological literature, discusses the nature of the contemporary white-supremacist movement and how the manner in which white supremacists utilize online-communications platforms makes it difficult for outsiders to become aware of and to disrupt conspiracies before they come to fruition, even while such plans are generally widely known by insiders within those online white-supremacist communities. Drawing upon psychological literature, Part III also discusses how § 1986 can be used as a tool to incentivize, through potential civil liability, insiders who are aware of white-supremacist plans and plots to report and disrupt them before they are carried into action. Part IV of this Essay briefly addresses potential First Amendment compelled speech challenges to § 1986 suits, to the extent that § 1986 requires disclosure of information by persons who are aware of white-supremacist plots. The Essay then concludes by arguing that § 1986, while not a complete solution to online radicalization and white-supremacist conspiracies, can and should be utilized much more broadly.

^ See U.S. White Supremacist Propaganda Remained at Historic Levels in 2021, With 27 Percent Rise in Antisemitic Messaging, Anti-Defamation League (May 3, 2022), https://www.adl.org/resources/reports/us-white-supremacist-propaganda-2021 [https://perma.cc/D6SU-6VS3] (“White supremacist propaganda, which allows extremist groups to disseminate hateful messages and gain attention with little risk of public exposure, has been on the rise for several years.”). Return to citation ^

^ See, e.g., Eileen Sullivan & Katie Benner, Top Law Enforcement Officials Say the Biggest Domestic Terror Threat Comes from White Supremacists., N.Y. Times (June 15, 2021), https://www.nytimes.com/2021/05/12/us/politics/domestic-terror-white-supremacists.html [https://perma.cc/SWM6-2TBS] (quoting Attorney General Merrick Garland’s testimony to the Senate Appropriations Committee that “the greatest domestic threat facing the United States [is] ‘racially or ethnically motivated violent extremists[,] . . . [s]pecifically those who advocate for the superiority of the white race’”); Sarah N. Lynch, U.S. Justice Department Forming Unit to Counter Domestic Terrorism, Reuters (Jan. 11, 2022, 12:36 PM), https://www.reuters.com/legal/government/us-justice-department-forming-unit-counter-domestic-terrorism-2022-01-11 [https://perma.cc/AK2N-HVPJ] (quoting Assistant Attorney General Matthew Olsen, who noted that the Department of Justice created a new domestic counterterrorism unit due to “an elevated threat from domestic violent extremists — that is, individuals in the United States who seek to commit violent criminal acts in furtherance of domestic social or political goals” — and that “[w]e have seen a growing threat from those who are motivated by racial animus, as well as those who ascribe to extremist anti-government and anti-authority ideologies”). Among many other horrific recent incidents, the racially motivated attack on African Americans in Buffalo, New York, reinforces the reality of this elevated threat level. See, e.g., Jesse McKinley & Glenn Thrush, Buffalo Shooting Suspect Is Charged with Federal Hate Crimes, N.Y. Times (June 15, 2022), https://www.nytimes.com/2022/06/15/nyregion/buffalo-shooting-hate-crime-charges.html [https://perma.cc/827P-Y2S6]. Return to citation ^

^ Expert Report of Kathleen Blee & Peter Simi at 10, Sines v. Kessler, No. 17-cv-00072 (W.D. Va. Jan. 9, 2023) [hereinafter Charlottesville Trial Expert Report] (“The [white-supremacist movement] was among the first social movements to take full advantage of the possibilities of the Internet as a communication and networking tool. New technologies of social media and Internet platforms allowed white supremacists a level of anonymity that facilitated their ability to recruit and communicate among members and interested individuals while evading detection.” (footnote omitted)). This report was filed in the civil suit arising from the “Unite the Right” rally in Charlottesville, Virginia, in 2017. Id. at 2. Return to citation ^

^ Id. at 6–7 (contending that white-supremacist groups, as groups shaped around a shared cultural identity, have “[e]xpected behaviors, values and norms [that] are expressed in ‘cultural scripts’ whose meaning is accessible only to insiders . . . [which] create[s] boundaries between those in the group and those on the outside of the group” (footnotes omitted)). Return to citation ^

^ Id. at 11 (“[T]he [white-supremacist movement] circulates and relies upon . . . ‘double-speak’ . . . a method of conveying white supremacist beliefs and intentions to those within the [white-supremacist] culture while sending an innocuous meaning to outsiders. It is a communication style that relies on deception and often the use of euphemistic words designed to sidestep a more candid mention of a harsh or distasteful reality. It relies on the audience’s ability to interpret the meaning of a message in multiple ways, drawing on both their cognitive abilities and the understandings that are specific to the culture and subcultures in which they are embedded.”). Return to citation ^

^ As the Brennan Center has noted: “[s]ocial media monitoring [by the government] may violate the First or Fourteenth Amendments. It is well established that public [social media] posts receive constitutional protection: as the investigations guide of the Federal Bureau of Investigation recognizes, [o]nline information, even if publicly available, may still be protected by the First Amendment. Surveillance is clearly unconstitutional when a person is specifically targeted for the exercise of constitutional rights protected by the First Amendment (speech, expression, association, religious practice) or on the basis of a characteristic protected by the Fourteenth Amendment (including race, ethnicity, and religion).” Rachel Levinson-Waldman, Harsha Panduranga & Faiza Patel, Social Media Surveillance by the U.S. Government, Brennan Ctr. for Just . (Jan. 7, 2022) (alteration in original) (internal quotation marks omitted), https://www.brennancenter.org/our-work/research-reports/social-media-surveillance-us-government [https://perma.cc/U9DM-FG7H]. Return to citation ^

^ See Michael German & Harsha Panduranga, How to Combat White Supremacist Violence? Avoid Flawed Post-9/11 Counterterrorism Tactics, Brennan Ctr . for Just . (Sept. 1, 2021), https://www.brennancenter.org/our-work/analysis-opinion/how-combat-white-supremacist-violence-avoid-flawed-post-911 [https://perma.cc/H6KJ-Z42J] (“The FBI’s inadequate response to far-right violence results from a lack of will, not a lack of legal authority. The FBI has used its domestic terrorism authorities aggressively to target and harass environmentalists and animal rights activists, despite the fact that these groups have not committed a single fatal attack. Yet the FBI doesn’t even track the number of murders committed by white supremacists each year, much less consistently investigate these crimes as domestic terrorism.”) Return to citation ^

^ See Nat’l Sec. Council , National Strategy for Countering Domestic Terrorism 9 (2021), https://www.whitehouse.gov/wp-content/uploads/2021/06/National-Strategy-for-Countering-Domestic-Terrorism.pdf [https://perma.cc/PK7U-WQBM] (“Domestic terrorists have — particularly in recent years — often been lone actors or small groups of informally aligned individuals who mobilize to violence with little or no clear organizational structure or direction. These individuals often consume material deliberately disseminated to recruit individuals to causes that attempt to provide a sense of belonging and fulfillment, however false that sense might be. Their ideologies can be fluid, evolving, and overlapping. . . . The often solitary and, at times, rapid nature of such mobilization to violence poses a particularly acute challenge to law enforcement and others seeking to prevent, disrupt, and deter domestic terrorism.”). Return to citation ^

^ See Charlottesville Trial Expert Report, supra note 3, at 9 (“Lacking a central command structure, the [white-supremacist movement] is organized through a deliberately created common culture that sustains a shared ideology of beliefs and goals grounded in an extreme differentiation between in-groups (whites/white supremacists) and out-groups (nonwhites/enemies) and an emphasis on violence.”). Return to citation ^

^ Linda E. Fisher, Anatomy of an Affirmative Duty to Protect: 42 U.S.C. Section 1986, 56 Wash. & Lee L. Rev . 461 (1999). Return to citation ^