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Excerpted From: Shirin Sinnar, Hate Crimes, Terrorism, and the Framing of White Supremacist Violence, 110 California Law Review 489 (April 2022) (409 Footnotes) (Full Document)

ShirinSinnarWhen a crowd of Trump loyalists stormed the Capitol on January 6, 2021, seeking to disrupt the certification of President Biden's victory, commentators struggled to describe what had transpired. Was it an insurrection? An autogolpe, or self-coup? A seditious conspiracy? As security agencies warned of more violence to come, many turned to the label of “domestic terrorism” to characterize the threat. And in June 2021, President Biden released what was billed as the first-ever national strategy for countering domestic terrorism, which included plans to increase surveillance, add suspects to terrorist watchlists, and otherwise preempt and punish racially motivated, anti-government, and other forms of ideological violence.

For several years before the invasion of the Capitol, some security officials, political leaders, and commentators had advocated framing White supremacist violence as terrorism. Many such calls originated in 2015, after a White supremacist massacred nine Black worshippers at a Charleston church. Some argued that the label of “hate crime” did not adequately stigmatize the violence unleashed, and that “terrorism” better conveyed the systemic nature of White supremacist violence and the prioritization it deserved. Many condemned the racially disparate nature of public and government responses to political violence, contrasting the castigation of Muslims and people of color as terrorists with the willingness to dismiss White supremacists as “whacked out kids.” In the years since Charleston, further acts of violence targeted racial or religious minorities and their allies in Charlottesville, Pittsburgh, and El Paso, with perpetrators acting out of a perceived threat of White “replacement.” After such incidents, when commentators asked, “Was this a hate crime or was this terrorism?,” public officials increasingly answered that such acts should be branded and charged as terrorism.

The ubiquity of the question with respect to racist violence--was it a hate crime or was it terrorism?--reflects the predominance that both of these frames have acquired in our law and culture. By “frame,” I mean an organizing concept through which a particular set of laws, policies, government practices, and cultural understandings defines and responds to a social problem. A substantial amount of violence by White supremacists, though not all, fits common legal and academic definitions of both “hate crimes” and “terrorism”: such violence often targets victims on the basis of their race, religion, ethnicity, or other legally defined characteristics, and it often does so with the intent to affect government policy through intimidation or coercion. But the categorization of that violence as either hate crimes or terrorism is not inevitable. Indeed, despite the fact that White supremacist violence has existed for centuries in the United States, it was not primarily described as either hate crimes or terrorism until recent decades, even when it was condemned. This Article explains how the hate crimes and terrorism frames took hold in our law and culture, such that they now supply the most natural categories for interpreting and responding to White supremacist violence. I draw on “frame analysis” from a variety of disciplines and the work of sociologists, historians, and legal scholars to explain the historical evolution of the hate crimes and terrorism frames.

Yet the question of framing is not one merely of historical interest. Adopting a hate crimes or terrorism frame generates important legal and political consequences today. These frames differ markedly from one another in how they conceptualize five issues: the nature and severity of the threat; the type of law enforcement response; the nature of perpetrators; the identity of victims and perpetrators; and the role of individual rights and courts. First, while hate crimes are construed as a civil rights and criminal law problem, terrorism is seen as a far more serious problem, with dimensions of both crime and war, to be addressed with national security strategies. Second, law enforcement agencies take a reactive approach to hate crimes that focuses on after-the-fact investigation and prosecution, while they apply a preventative approach to terrorism. Third, the law treats hate crime perpetrators as deserving of greater punishment than other defendants, but as ultimately redeemable; meanwhile, the law treats those affiliated with terrorism as perpetually dangerous criminals, if not enemy combatants. Fourth, the hate crimes frame casts identity groups as the primary victims, whereby prototypical victims are minority-group members and prototypical perpetrators are majority-group members; the terrorism frame considers the nation as the primary victim, often represented as a White or multiracial entity, and it casts perpetrators as foreigners who are prototypically Muslim and non-White. Fifth, hate crime law embodies strong First Amendment protection for defendants and weak judicial deference to the executive branch, while terrorism cases reflect weak First Amendment protection and strong judicial deference, even when individual rights are implicated.

Given these stark differences, the push to reframe White supremacist violence as terrorism invites profound consequences. To be clear, the current legal architecture for terrorism differentiates between “international” and “domestic” terrorism in ways that constrain the legal treatment of domestic terrorism--a subject of my earlier work. In addition, the racial and political identity of White supremacists provides that group a measure of protection that other non-White groups do not enjoy. For both those reasons, the terrorism reframing of White supremacist violence will not be complete, in that the conceptualization of, and response to, such violence will not fully take on the characteristics of the terrorism frame. Yet the move to label, regulate, investigate, and prosecute White supremacist violence as terrorism-- including through the proposed enactment of new laws--pushes it further towards the existing terrorism frame.

The problem is that neither the hate crimes nor terrorism frame addresses White supremacist violence in a way consistent with evolving ideas of racial justice. While hate crime laws arose from the efforts of civil rights advocates and marginalized communities to address real violence targeting their communities, they took shape against a backdrop of law-and-order politics and conservative backlash to civil rights. As a result, these laws responded to hate crimes as a problem of biased individuals, unconnected to ideology or social structures, to be addressed primarily through lengthening incarceration.

Some imagine that reframing White supremacist violence as terrorism will thereby recognize the ideological and systemic nature of the threat, assign it the preeminent stigma of terrorism, and shift state resources and prioritization towards the threat. But the move comes with grave risks: it shifts institutional power towards a national security apparatus and an industry of “terrorism experts” far removed from affected communities; it entrenches preemptive law enforcement practices that surveil and prosecute people on suspicion of future threats; and it ignores the U.S. tendency to respond most severely to security threats appearing to challenge the dominant racial and socioeconomic order. A racial justice approach to White supremacist violence must begin with critical attention to state violence and repression. This does not mean that every law in place for responding to hate crimes or terrorism is unjust. Questions about individual laws or programs, existing or proposed, must be addressed with greater nuance than has characterized the debate to date. But those questions cannot be answered without deeper consideration of the fraught histories and contemporary effects of the hate crimes and terrorism frames.

This Article proceeds as follows. Part I describes the threat of violence by White supremacists, including its scope, level of organization, and complicated relationship with the state. Part II explains how a substantial amount of White supremacist violence fits within common definitions of both hate crimes and terrorism and how these two frames developed in the last decades of the twentieth century. It also describes how “domestic terrorism” developed as a legal and rhetorical category, especially after 9/11, to distinguish it from counterterrorism applied to Muslims. Part III analyzes how the hate crimes and terrorism frames diverge with respect to the five issues identified above: the nature and severity of the threat; the type of law enforcement response; the characterization of perpetrators; the identity of victims and perpetrators; and the role of individual rights and courts. Part IV highlights the limits of the hate crimes frame, warns against the expansion of counterterrorism, and sketches preliminary ideas for an approach to White supremacist violence more aligned with ideas of racial justice.

[. . .]

Originating in different histories, the hate crimes and terrorism frames are now commonly invoked in response to White supremacist violence. This Article encourages a “frame-reflective policy discourse by identifying the taken-for-granted assumptions that underlie people's apparently natural understandings and actions” with respect to this challenge. Despite their differences, neither frame is consistent with racial justice. While the hate crimes frame offers only a limited account of the challenge, calls for expanding the terrorism frame to counter White supremacist violence neglect the power shift to security agencies that would accompany that framing, the problems with preventative and punitive counterterrorism, and the potential for expanded domestic terrorism laws to target subordinated communities. Addressing White supremacist violence should begin with recognizing the frames that have shaped the social and legal treatment of political violence and that continue to limit our imagination.

Professor of Law and John A. Wilson Faculty Scholar, Stanford Law School.

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