Nearly a year after the 2020 election and more than 10 months from the Jan. 6 insurrection, our nation continues to experience an alarming increase in intimidation and threats of violence. The window is closing for leaders across the political spectrum to reject this assault on our democratic processes before it is too late.
The attack on the U.S. Capitol is the most visible example of political violence, but it did not begin nor end there. Since the election, more than 100 threats of death or violence have been documented against election workers and officials of both parties across the country.
Just as threatening have been the responses to public health measures taken to combat the COVID-19 pandemic, including the plot by militia violent extremists to kidnap Michigan Gov. Gretchen Whitmer after she ordered COVID-19 restrictions last year.
Mask mandates have now taken the place of shut-down orders in triggering threatening behavior. The National School Board Association, which represents 90,000 local school-board members, recently sent a letter asking the Departments of Justice and Homeland Security to do more to prevent harassment and violence against teachers and school board members.
In Pennsylvania, a candidate for Northampton County executive threatened to rally “20 strong men” to forcibly remove pro-mask-mandate school board members from their local board meeting. Threats escalated to violence at a school in California when a teacher was hospitalized after being assaulted by a parent angered that his child was required to wear a mask.
Shockingly, violence and intimidation are being ignored and even glorified by some elected officials. Political opportunists not only have refused to condemn the U.S. Capitol rioters, but in a remarkable display of revisionist history contradicted by reams of video and audio footage, have also painted those arrested as political prisoners.
Pennsylvania Congressman Scott Perry has complained that the rioters are being treated like terrorists held at Guantanamo Bay. It’s hard to overstate the danger of this type of extremist rhetoric by someone in a position with a veneer of credibility.
Rep. Perry was defending people who participated in a violent attack during which a police officer was killed and at least 140 others were injured. Two others took their own lives in the wake of the day’s trauma.
The fact is that relatively few of the arrested attackers have been detained pretrial and all are being afforded their constitutional right to due process in the courts. The congressman’s labeling of the insurrectionists as political prisoners can serve only one purpose: to embolden and encourage those willing to use violence to undermine the core tenets of our democracy.
The congressman’s rhetoric also highlights a fundamental misunderstanding about what the U.S. Constitution protects. The Supreme Court has been clear for decades that the First Amendment does not protect violence, nor incitement to imminent lawless activity.
Similarly, to the extent that those threatening election officials, public health officials, and school board members think that their conduct is protected, they are also mistaken. Federal and state laws criminalize making threats to injure or kill, whether in person, online, or by other means. Federal and state laws also criminalize stalking.
It is time for leadership across the country to recognize the perilous path we are on. It is not ok to contort the First Amendment—a fundamental constitutional right that makes the U.S. different from authoritarian countries—into a protective cloak under which its wearers may stoke violence, threats, and intimidation. Our country cannot function without those willing to serve as election officials, elected officials, and other public servants. But we are driving them away in droves, as the price to them and their families is simply too high.
This is the stuff of failed democracies. A failed democracy fails for both parties.
Mary B. McCord is the Executive Director of the Institute for Constitutional Advocacy and Protection and a Visiting Professor at Georgetown Law. She is a former Acting Assistant Attorney General for National Security at the U.S. Department of Justice. McCord is affiliated with Keep Our Republic.