Racial terrorism by organized hate groups and “lone wolf” vigilantes presents a growing societal danger. Increasingly, the planning and recruitment for such plots occur through online communications channels. This Essay sheds new light upon how little-known federal civil rights statutes originally enacted following the Civil War can be applied to the use of online platforms in planning and discussing racially motivated attacks. The Ku Klux Klan Act of 1871 gave rise to 42 U.S.C. §§ 1985 and 1986, still in effect today. Section 1985 provides a federal civil cause of action against persons who conspire to deprive a person of federally protected civil rights. Section 1986, which is the focus of this Essay, provides a cause of action against persons who are aware of a § 1985 conspiracy yet fail to act to prevent it from being carried into action.
This Essay first reviews the background, text, and legislative history of §§ 1985 and 1986. The Essay next draws upon sociological research illuminating the nature of the contemporary white-supremacist movement and the manner in which white supremacists utilize online communications platforms, which make it difficult for outsiders to become aware of and to disrupt conspiracies before they come to fruition. This Essay then discusses how § 1986 can be used as a tool to incentivize insiders and bystanders who are part of online networks where such plots are discussed to report and disrupt them before they manifest, drawing upon the law and psychology literature regarding bystander motivations and behavior. Finally, the Essay discusses potential First Amendment compelled speech challenges to § 1986 suits. This Essay concludes that § 1986 can and should be utilized more widely to combat white-supremacist terrorism.
The resurgence of violent extremism is at a critical inflection point.1 In particular, racialized violence both by organized groups and by individuals presents a serious and growing threat.2 Such groups and individuals have increasingly utilized online channels of communication to organize and to prepare for action.3 Radicalized groups are often largely opaque and impenetrable to outsiders due to their closed networks, group solidarity,4 and coded language or symbology.5 Moreover, law enforcement officials generally cannot engage in preemptive surveillance or interception of online communications based solely upon extremist ideology.6
Knowledge of the threats posed by such groups therefore often does not come in sufficient time to prevent attacks or to disrupt recruitment and radicalization.7 Insiders, then, are the persons most likely to have sufficient advance knowledge of groups and individuals who are preparing to cross the line from radical ideology to terrorist action, even if these insiders do not themselves intend to engage in such action.8 Insiders, however, generally share the ideology of the radicalized groups and individuals, or at least have sufficient affinity for them as to be unlikely to report or disrupt their plots absent strong countervailing incentives.9
A wide array of legal tools can and should be brought to bear in the current fight against racial terrorism. One such set of tools derives from an earlier era of racial terror: the fight after slavery against white mobs, individual vigilantes, and terrorist organizations such as the Ku Klux Klan. Several civil rights statutes enacted in the wake of the Civil War pursuant to Congress’s powers under the Reconstruction Amendments —that is, the Thirteenth, Fourteenth, and Fifteenth Amendments — aimed specifically to deter and punish those who sought to use private violence as an alternate means of enforcing white supremacy and Black subjugation once chattel slavery had been abolished and racially subordinating laws had been rendered illegal in law (if not always in fact).
This Essay focuses upon two such federal statutes originally enacted as part of the Ku Klux Klan Act of 187110: 42 U.S.C. §§ 1985 and 1986. Section 1985 provides a federal civil cause of action against those who conspire to deprive a person of federally protected civil rights;11 § 1986 provides a cause of action against those who are aware of such a conspiracy yet fail to act to prevent it from being carried into action.12 The Reconstruction Congresses that debated and adopted these provisions were well aware that the preceding centuries of slavery, racial violence, and Black subjugation had been carried out through an interlocking web of governmental and private action. They therefore knew that fully realizing the civil rights promised by the Reconstruction Amendments would require a similarly robust system of public and private action. Just as the regime of American slavery, apartheid, and racial terror could not have been enforced through state action alone, neither would dismantling that regime be possible through state action alone.
This Essay builds upon Professor Linda Fisher’s masterful article Anatomy of an Affirmative Duty to Protect: 42 U.S.C. Section 198613 by (1) updating its findings for the digital age and (2) bringing to bear interdisciplinary insights from the fields of sociology and psychology to describe how § 1986 can be applied to bystanders who are aware of white-supremacist individuals’ and groups’ use of online platforms to plan and discuss their plots. Part I of this Essay reviews the history of slavery and of the Reconstruction Amendments, which were the background for the civil rights statutes enacted in the wake of the Civil War. Part II then explores those civil rights statutes, with a particular focus upon the purposes and history of §§ 1985 and 1986. Part III of this Essay, drawing upon sociological literature, discusses the nature of the contemporary white-supremacist movement and how the manner in which white supremacists utilize online-communications platforms makes it difficult for outsiders to become aware of and to disrupt conspiracies before they come to fruition, even while such plans are generally widely known by insiders within those online white-supremacist communities. Drawing upon psychological literature, Part III also discusses how § 1986 can be used as a tool to incentivize, through potential civil liability, insiders who are aware of white-supremacist plans and plots to report and disrupt them before they are carried into action. Part IV of this Essay briefly addresses potential First Amendment compelled speech challenges to § 1986 suits, to the extent that § 1986 requires disclosure of information by persons who are aware of white-supremacist plots. The Essay then concludes by arguing that § 1986, while not a complete solution to online radicalization and white-supremacist conspiracies, can and should be utilized much more broadly.