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Disaggregating Political Violence

Summary: Rising violence by political “insiders” poses a threat to our democratic institutions in ways that Supreme Court precedents on the First and Second Amendments, developed in response to risks from fringe actors, do not adequately respond.

  • Michael Dorf Michael C. Dorf
Published: June 29, 2021

This essay is part of the series Protests, Insur­rec­tion, and the Second Amend­ment

ABSTRACT: Modern First Amend­ment doctrine was created in the second half of the 20th century and built on the found­a­tion of proph­etic dissents of Justices Oliver Wendell Holmes Jr. and Louis Bran­deis in response to a paradigm of outsider viol­ence — acts perpet­rated by anarch­ists, commun­ists, and other marginal figures who had virtu­ally no chance of succeed­ing in their polit­ical aims but nonethe­less posed a threat to public safety. The key preced­ents may prove inad­equate in confront­ing a threat not seen in the United States since before the recog­ni­tion of civil rights and civil liber­ties during the Warren Court era. We are now witness­ing a resur­gence of insider viol­ence by substan­tial numbers of support­ers of one of the two major polit­ical parties. Whereas outsider viol­ence chiefly poses the risk of a breach of the peace, insider viol­ence poses that risk as well as a threat to demo­cracy itself.

Insider viol­ence appears to be on the rise. In recent years, and espe­cially during the last year of the Trump admin­is­tra­tion, armed protest­ers have func­tioned as the unof­fi­cial shock troops of a polit­ical move­ment that captured the pres­id­ency and a great many seats in Congress and state legis­latures. Coun­ter­speech against this move­ment has limited util­ity, as the move­ment aims less to persuade than to intim­id­ate. A proper diagnosis requires disag­greg­at­ing polit­ical viol­ence into its insider and outsider vari­ations. Find­ing a cure will likely be diffi­cult. Although modi­fic­a­tions to First and Second Amend­ment preced­ents may be neces­sary, neither will be suffi­cient. Extreme partisan polar­iz­a­tion raises the stakes of polit­ics to the point that many people view them as exist­en­tial, thus justi­fy­ing viol­ence. Absent polit­ical realign­ment, insider viol­ence will continue to pose a seri­ous chal­lenge to the survival of demo­cratic insti­tu­tions.