Race, Entrapment and Manufacturing 'Homegrown Terrorism'

Abstract

At what point does offensive speech cross the line from being constitutionally protected to criminal? Rarely—would be the response of a free speech purist. Indeed, the First Amendment is intended to protect unpopular, offensive, and even subversive speech. Although this lesson may be taught to American schoolchildren, it is not the lived experience of Muslim dissidents, especially at the more extreme end of the political spectrum. And yet, the white extremists whose racist and anti-government hate speech has skyrocketed since the election of President Obama have not received attention commensurate to their growing influence.

Only after they seized the United States Capitol in January 2021 did the government shift its domestic security priorities to meaningfully address the threat posed by far-right-wing groups. Such disparate treatment of political extremists of different racial and religious identities prompts the question: Is the problem one of law or of law enforcement? This Article argues that selective counterterrorism enforcement allocates disproportionate resources targeting Muslim communities; all the while, entrapment law fails to protect these communities from predatory sting operations.

The extent to which otherwise First Amendment-protected activities are criminalized is most glaring in post-9/11 terrorism prosecutions in which Muslim defendants ensnared in sting operations have raised an entrapment defense. Specifically, a defendant’s social media posts—prior to the sting operations—are used as evidence of his predisposition to commit a terrorist act, notwithstanding that the plot was developed and led by an informant or undercover agent. Offensive speech is bootstrapped into showing a defendant’s willingness to commit a crime.

Although numerous journalists and lawyers have come to this conclusion, the empirical basis is underdeveloped. This Article empirically tests this normative claim, based on the author’s database of 646 federal terrorism-related cases brought against Muslims between 2001 and 2021. The analysis reveals a criminalization of religious and dissident Muslims who have engaged in extremist speech but who have not engaged in violence without government ensnarement, while far-right supremacist groups are simultaneously granted license to plan politically motivated violence, culminating in a siege on the U.S. Capitol.

Keywords: Homegrown Terrorism, Domestic Terrorism, Counterterrorism, National Security, Muslims, CVE, Violent Extremism