Case Explained: The Dangerous Drift to Redefine Protest as Terrorism – Legal Perspective

When college students sat down at segregated lunch counters in 1960, they were breaking the law. They trespassed on private property, refused police orders to disperse, and sometimes violated court injunctions specifically designed to stop their demonstrations. In an effort to maintain public order, local authorities arrested them by the hundreds and charged them with disturbing the peace.

But these students were also exercising their constitutional rights.

This paradox—that civil disobedience can be simultaneously illegal and constitutionally protected—has been a constant source of tension in the U.S. But how the law talks about it has changed. Increasingly, the language of national security is creeping into spaces once governed by public-order statutes and First Amendment doctrine. We are no longer debating whether protesters who break the law should face charges. The new question is whether they should be investigated as terrorists.

What happened in Minneapolis—and what threatens to happen more broadly—reveals how quickly that transformation can occur, and why it should alarm anyone who cares about democratic dissent.

The Pattern America Keeps Repeating

We have been here before, repeatedly. In his comprehensive study “Perilous Times,” legal historian Geoffrey Stone traces a recurring American pattern: Perceived crisis triggers expanded executive power—which gets directed not just at genuine threats but at unpopular dissent—until the crisis passes and retrospective analysis reveals how badly we overreacted.

The Palmer Raids of 1919-1920 offer a particularly instructive episode. Attorney General A. Mitchell Palmer, responding to a series of anarchist bombings, launched mass arrestsco of suspected radicals. On a single night in January 1920, federal agents detained more than 4,000 people in coordinated raids across dozens of cities. Many were held without charges. Many were citizens whose only “crime” was membership in organizations the government deemed dangerous. The young J. Edgar Hoover, then heading the Justice Department’s new General Intelligence Division, had spent months compiling dossiers on suspected radicals based largely on their political beliefs and associations.

Palmer defended the raids as essential to national security, warning that revolutionary violence was imminent. “Like a prairie-fire, the blaze of revolution was sweeping over every American institution of law and order,” he wrote. The threats were real—the bombings had occurred. But Palmer’s response conflated actual bombers with labor organizers, immigrants with unpopular political views, and anyone who attended the wrong meeting or read the wrong newspaper.

The legal justification rested on guilt by association. If you belonged to an organization that advocated revolution, you were presumed dangerous regardless of your individual actions. If you attended meetings where radical ideas were discussed, you became an investigative target. The ideology came first; evidence of actual criminal conduct came later, if at all.

Within two years, Palmer’s reputation was in ruins. Courts released most of those detained, finding the arrests and deportations legally baseless. A report by a group of prominent lawyers, including future Supreme Court Justice Felix Frankfurter, documented systematic violations of constitutional rights. Stone notes that Palmer’s overreach didn’t make Americans safer—it diverted investigative resources away from genuine threats while traumatizing thousands of people whose only offense was their politics.

The pattern repeated during World War I, when the Espionage Act was used to prosecute more than 2,000 people, mostly for antiwar speech. It repeated during the McCarthy era, when suspected communist sympathies became grounds for investigation, blacklisting, and prosecution. Each time, the government insisted the threat was unprecedented and extraordinary measures were necessary. Each time, the machinery of national security expanded to encompass political dissent. And each time, years later, the country recognized it had gone too far.

Stone identifies the common elements: a real or perceived external threat, an unpopular minority associated with that threat, public fear that overwhelms normal democratic deliberation, and institutional deference to executive claims about national security. Under those conditions, the line between investigating crimes and investigating ideologies dissolves.

The civil rights era added another chapter. COINTELPRO, the FBI’s counterintelligence program, began as an effort to monitor communist infiltration but expanded to target civil rights organizations, antiwar activists, and the New Left. The Church Committee’s investigation in the 1970s revealed that the bureau had conducted surveillance, planted informants, and actively worked to “disrupt, discredit, and neutralize” groups engaged in lawful political activity. Martin Luther King Jr. was among those surveilled and targeted, not because he had committed crimes but because his movement was seen as a threat to social order.

The modern FBI guidelines and the legal frameworks meant to constrain domestic intelligence work emerged from that reckoning. They were designed to prevent the government from treating ideology as a proxy for assessing threat level. But as Stone’s work makes clear, institutional memory fades. Each new crisis creates pressure to treat the current threat as uniquely dangerous and the old protections as luxuries we can no longer afford.

The Law We Pretend Is Simple

The First Amendment protects protest. Everyone agrees on that much. Streets and sidewalks are core public forums, and the Supreme Court has struck down again and again the kind of vague “disturbing the peace” laws that southern sheriffs once used to arrest civil rights marchers.

But the First Amendment does not grant immunity to break other laws. This is the part that gets lost in political rhetoric. You can march and chant and carry signs.      You cannot assault police officers, vandalize property, or block federal operations simply because you’re doing it to make a political point. The law on this is settled, even if the politics remain contested.

The real complexity lies in three doctrinal boundaries that courts have carefully policed.

First, there is a line between advocacy and incitement. The modern standard emerged from the prosecutions that Stone documents, detailed below. During World War I, Eugene Debs was sentenced to 10 years in prison for an antiwar speech that criticized the draft. Charles Schenck went to prison for distributing leaflets urging resistance to conscription. The Supreme Court upheld both convictions using Justice Oliver Wendell Holmes’s “clear and present danger” test, which in practice gave the government wide latitude to prosecute dissent.

It took 50 years for the Court to correct course. In Brandenburg v. Ohio (1969), the Court finally established that the government cannot treat heated political rhetoric as criminal incitement unless it crosses into direct solicitation of imminent lawless action that’s likely to occur. This deliberately high bar protects radical speech, including speech that advocates illegal action in the abstract. The standard exists precisely because we spent decades prosecuting people like Debs for their political views.

Second, there’s the question of what counts as a “true threat.” A recent Supreme Court decision tightened the standard, requiring prosecutors to prove that the speaker was at least reckless about whether their words would be understood as threatening. This matters especially in our current moment, when doxxing—publishing someone’s personal information online—sits in contested legal territory. Publishing information is generally protected speech. Publishing it with intent to intimidate, accompanied by language suggesting violence, is not.

Third, there’s association. The Supreme Court ruled in 1982, in a case involving an NAACP boycott, that you cannot hold an organization or its leaders liable for violence committed by individual members unless you can prove the leadership authorized or directed those acts. This principle directly rejected the Palmer Raids logic of guilt by association. It has become more important, not less, as protest movements have grown more decentralized—with overlapping coalitions, encrypted group chats, ad hoc organizing, and nonprofits that train people on their legal rights.

The meaningful boundary separates speech from violence, not protest from terrorism. And the hard cases—there are many—cluster right along that line.

How a Definition Becomes a Weapon

Federal law defines domestic terrorism—but crucially, it doesn’t make it a standalone crime. That technical distinction matters less than you might think.

The definition in 18 U.S.C. § 2331(5) is broad: acts dangerous to human life that violate criminal law, with apparent intent to intimidate civilians or influence government policy, occurring primarily within the United States. It sounds precise. In practice, applied to protest activity, it creates enormous discretion.

Consider how the label functions operationally. Once conduct gets coded as “domestic terrorism,” cases flow through joint terrorism task forces rather than ordinary criminal investigations. Prosecutors reach for terrorism sentencing enhancements. Banks and tech platforms treat individuals and organizations as if they’ve been officially designated, even when no such legal designation exists. The government’s internal machinery shifts and with it, the tools investigators use and the questions they ask.

Applied to protests that turn disruptive or occasionally violent, the pressure points are predictable.

Blocking Immigration and Customs Enforcement (ICE) vehicles is illegal—trespassing, obstructing traffic. But is it “dangerous to human life”? Sometimes it’s just a public-order misdemeanor. Sometimes it escalates, and someone gets hurt. The facts matter enormously, but the label can precede the facts.

Assaulting federal officers, as that offense is commonly interpreted, is a serious felony. When it’s organized and repeated with political objectives, it can look like the statutory definition quickly. No one should dispute that.

Doxxing sits in murkier territory. Publishing someone’s home address is usually legal. Publishing it alongside language like “make them afraid” and “legitimate targets,” in a context where threats follow, starts to look like criminal intimidation. But the line depends on specifics—what information, presented how, with what intent, leading to what consequences.

And then there’s the infrastructure question: the nonprofits that train protesters on their rights, the legal observers who document police conduct, the bail funds and mutual aid networks. Training people on how to protest lawfully is protected speech and association. Training people to commit violence is conspiracy. Everything depends on what’s actually happening, not on the politics of the people in the room.

This is where careless rhetoric about “domestic terrorism networks” does real damage. Once you start treating protest infrastructure itself as presumptively suspect, you’re replicating Palmer’s mistake: treating ideology and association as evidence of criminal intent.

When Policy Becomes Pressure

The FBI doesn’t operate in a vacuum. It works within detailed guidelines established by the attorney general, which set graduated levels of investigation. At the lowest level, “assessments” require an authorized purpose but very little factual basis. Higher-level investigations require more evidence but still far less than the probable cause needed for a warrant.

This structure was deliberately designed after Sept. 11 to allow early detection of terrorism threats before plots matured. The trade-off was always obvious: If the barriers to opening investigations are low, and if political leadership signals that certain kinds of protest activity are terrorism priorities, you risk treating constitutionally protected dissent as a domestic intelligence problem rather than a public-order matter.

Recent policy directives push directly into that danger zone. A January 2025 National Security Presidential Memorandum directs joint terrorism task forces to build comprehensive strategies targeting not just violent actors but their funders and supporting organizations, explicitly flagging “anti-fascism” as a concern. The attorney general issued a memo the same month directing components to surge resources against political violence targeting ICE, emphasizing prosecution not only of those committing violence but also of anyone who aids, abets, or conspires through funding or coordination.

Read narrowly, these directives target genuine criminal conduct—assaults on federal officers, conspiracies to commit violence. Read broadly, they invite investigations that begin with ideology and work backward to find crimes. When leadership says that “organized doxxing” and obstruction are domestic terrorism priorities, it becomes easier to justify opening preliminary investigations into protest networks even when most of their activity is lawful.

Stone’s analysis helps explain why this drift occurs so predictably. When political leadership frames dissent as a security threat, investigative agencies face impossible pressure. They must either defer to that framing—and risk repeating the Palmer Raids or COINTELPRO—or resist it and face accusations that they’re ignoring genuine threats. The structural incentives push toward overinclusion: Better to investigate too broadly than to miss something and face blame.

Two things follow. First, lawful protest infrastructure—the training sessions, the legal hotlines, the bail funds—starts getting treated as investigative leads rather than as ordinary features of democratic life. Second, investigators and prosecutors end up in a position that’s hard to defend: “We’re not investigating the protest; we’re investigating the network behind it.” But when “network” just means “people with shared politics who sometimes coordinate,” you’ve turned association into evidence.

The hypotheticals aren’t abstract. A nonprofit holds a know-your-rights training covering how to protest safely and lawfully. A week later, an unaffiliated group blocks ICE vehicles and someone throws a bottle at an agent. Under a restrained approach, prosecutors charge the assault and the obstruction, but the training stays irrelevant unless there’s evidence it was used to plan the crime. Under an expansive approach, the training becomes a lead: who attended, who paid for it, who else they know, what their politics are. That’s how you convert constitutionally protected association into the basis for investigation.

Or consider this: An activist account posts ICE agents’ names and addresses with a caption calling them “legitimate targets” and urging followers to “make them afraid to sleep.” An agent receives threatening messages. That plausibly involves criminal threats and intimidation—conduct unprotected by the First Amendment. A careful investigation focuses on the threats and unlawful conduct. A politicized investigation treats “anti-ICE protest culture” as the target and works outward from there.

Why This Time Should Be Different (But Probably Won’t Be)

Stone’s work is ultimately pessimistic about America’s capacity to learn from its civil liberties failures. He notes that in each crisis, Americans convinced themselves their situation was unprecedented and their restrictions temporary. They weren’t and they weren’t.

Yet Stone also identifies what makes the difference between restraint and excess: political leadership willing to maintain legal discipline even under pressure, courts willing to enforce constitutional limits even when the public is fearful, and robust democratic discourse that allows dissenting voices to be heard.

The modern FBI guidelines were written to embody those lessons. They explicitly state that the government cannot open investigations solely because people are exercising First Amendment rights, and that investigative tools should never be used to discourage lawful protest.

But guidelines work only when political leadership respects the line between setting policy priorities and directing investigative targeting. That line gets blurry when senior officials make sweeping legal claims that pressure the system. When an administration official tells ICE officers they have broad immunity while performing their duties, that anyone obstructing them commits a felony, and that the Justice Department will treat not only activists but also state and local officials as potential conspirators, the message is clear even if the legal claims are overstated. “Obstruction” becomes elastic enough to cover everything from violent interference to peaceful protest.

Combine that rhetoric with low thresholds for opening investigations and explicit direction to treat protest-adjacent conduct as terrorism priorities, and you recreate the institutional hazard Stone documents across a century of civil liberties failures: investigative energy flowing toward political categories rather than criminal ones.