The Anti-Klan Act in the 21st Century

Abstract

Racial terrorism by organized hate groups and “lone wolf” vigilantes presents a growing societal danger. Increasingly, the planning and recruitment for such plots occurs through online communications channels. The Article sheds new light upon how a little-known federal civil rights statute originally enacted following the Civil War can be applied to the use of online platforms to plan and discuss racially motivated attacks. This Article focuses upon 42 U.S.C. Sections 1985 and 1986, which were originally enacted as part of the Ku Klux Klan Act of 1871. 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 Article, provides a cause of action against persons who are aware of Section 1985 conspiracy yet fail to act to prevent it from being carried into action.

This Article first reviews the background, text, and legislative history of Sections 1985 and 1986. The Article 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 Article then discusses how Section 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 Article discusses potential First Amendment compelled speech challenges to Section 1986 suits. This Article concludes that Section 1986 can and should be utilized more widely to combat white supremacist terrorism.

Keywords: Section 1985, Section 1986, terrorism, civil rights, social media, hate groups, First Amendment, Reconstruction, Civil War, Section 230, radicalization, Internet