Abbott’s blacklist: America’s tradition of branding dissent as treason

The governor of Texas just targeted a nonprofit over speech he doesn’t like.

(Image via Shutterstock)

This week, Texas Gov. Greg Abbott labeled the Council on American-Islamic Relations a foreign terrorist organization, and prohibited them from purchasing land in the state. That move doesn’t just have practical ramifications for CAIR’s ability to operate in Texas — it follows an all-too-familiar pattern in American history. In moments of perceived crisis, public officials cast unpopular ideological minorities as internal enemies, exploiting “security” concerns to trample on speech and belief.

CAIR is a D.C.-based, national organization whose mission is to “enhance understanding of Islam, protect civil rights, promote justice, and empower American Muslims.” CAIR has been fiercely critical of Israel and American efforts to support Israel’s military campaign in Gaza. Recently, CAIR successfully sued Abbott’s administration over executive orders that targeted pro-Palestinian campus protesters. CAIR also defended EPIC City, a Muslim-oriented development in Texas that Abbott investigated in September.

Against that backdrop, Abbott’s order designating CAIR cites to the organization’s protected speech and viewpoints, alleges that CAIR supports terrorism, and says they are “radical extremists” who “are not welcome in our state.” He then offers the vague assertion that CAIR wants “to forcibly impose Sharia law and establish Islam’s ‘mastership of the world.’” CAIR has since sued Abbott’s administration for the terror designation.

Using the language of “terrorism” and “foreign enemy” is not a new tactic to quash disfavored speech. In 1918, on the heels of World War I and the ensuing anti-German and anti-Bolshevik fervor, Montana passed its Sedition Act. The Act made it a crime to “utter, print, write or publish any disloyal, profane, violent, scurrilous, contemptuous, slurring or abusive language” about the U.S. government, Constitution, flag, military, or any language “calculated to incite or inflame resistance” to federal or state authority during the war. In other words, it made criticizing the U.S. illegal.

Under Montana’s Sedition Act, hundreds of Montanans were arrested and 79 ultimately convicted for things as minor as making offhand anti-war remarks in a bar. One convict, Slovenian native Josef Gocevar, said “President Wilson had no business getting into this war.” He was sentenced to six years in prison. Another convict, Fay Rumsey, made the mistake of saying that he “wished the Germans would come in and clean up the U.S.” He received a two-year sentence. By proscribing one side of the debate over the war, Montana’s Sedition Act effectively criminalized dissent.

The Sedition Act also proved useful for pressuring anti-war Montanans into violating their consciences by buying war bonds. Local patriotic councils created lists of dissenters. Mobs weaponized the lists, threatening to report fellow citizens to the authorities if they did not purchase war bonds. It worked: One council boasted that Montana subscribed to war bonds at a level “far exceeding national projections.”

When men pressured Earnest V. Starr, an Ohio native who moved to Montana, to buy war bonds and kiss an American flag, Starr refused, stating that the flag was “nothing but a piece of cotton with a little paint on it.” Starr was sentenced to 10 years in prison and had to pay a $500 fine, which is about $9,000 in today’s dollars. Another mob threatened to lynch German immigrant Herman Bausch for refusing to buy war bonds, instead interrogating him for several hours. After Bausch admitted that he was “opposed to war” and that he would “not contribute financially to this world calamity,” he was convicted and sentenced to four years in prison.

Dissenters during the Second World War fared similarly, particularly Jehovah’s Witnesses. Jehovah’s Witnesses are pacifists, and categorically opposed the war. Their opposition — and refusal to salute the American flag — drew accusations that they were fifth columnists, a term for a group that secretly sympathizes with the enemy. Between 1940 and 1942, there were hundreds of attacks on Jehovah’s Witnesses in the US, almost always with the support of local law enforcement. In a sick twist, Nazi Germany similarly persecuted Jehovah’s Witnesses for refusing to participate in Hitler’s patriotic exercises. Many were ultimately murdered in Nazi concentration camps.

In Minersville School District v. Gobitis (1940), the Supreme Court held that public schools did not violate the First Amendment when they compelled Jehovah’s Witnesses to salute the American flag and recite the Pledge of Allegiance. Within days of the Gobitis ruling, members of the American Legion (in conjunction with the local police chief) in Richwood, West Virginia, forced Jehovah’s Witnesses to drink castor oil and march to the post office to salute the flag. Similar attacks were carried out elsewhere: Litchfield, Illinois jailed all 60 Witnesses in the town, while a mob burned a Witness building to the ground in Maine. As one Southern sheriff put it: “they’re traitors; the Supreme Court says so. Ain’t you heard?”

But the Jehovah’s Witnesses persevered. Only three years after the Gobitis-inspired fervor, the Supreme Court reversed course. In West Virginia State Board of Education v. Barnette (1943), the Court overruled Gobitis, famously holding that the government cannot “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

That reversal fit into a broader rethinking of how far officials can go to marginalize “disloyal” speech. Early World War I prosecutions under the federal Sedition Act ended in victories for the government. But in Abrams v. United States (1919), Justices Brandeis and Holmes cautioned in dissent that punishing unpopular dissidents for their words alone was incompatible with a free society. It took decades, but their view eventually prevailed: Brandenburg v. Ohio (1969) held that even ugly, extremist advocacy is protected unless it is intended and likely to spur imminent lawless action. The logic that undergirded Montana’s Sedition Act no longer holds water, which should make us very skeptical when today’s officials reach for “national security” to silence opposition.

Yet in Texas today, you can hear the same soundtrack playing underneath Abbott’s rhetoric about CAIR. He says CAIR has taken “actions . . . to support terrorism across the globe and subvert our laws through violence, intimidation and harassment” and calls them “radical extremists” who “are not welcome in our state.” That line about support for terrorism does the same work as “disloyal, profane, scurrilous . . . language” in the Montana Sedition Act: It collapses speech and advocacy into treason. Much like Gobitis’ effect on Jehovah’s Witnesses during World War II, Abbott’s decision singles out CAIR as a potential fifth column — and asks the state government to treat it as such.

Of course, if CAIR has broken the law, state law enforcement may follow its regular processes for criminal or civil investigations. That means opening investigations based on actual evidence of legal violations, not based on a target’s viewpoints and speech. When constitutional rights are at stake, evidence like Abbott’s is too thin. For example, Abbott cites an FBI agent who claimed that CAIR was a “front group” for Hamas, but that was only one agent, 17 years ago, and the federal government (across Democratic and Republican administrations) has brought zero material support for terrorism charges against CAIR. Abbott also cites a War on Terror-era case where a judge denied CAIR’s motion to file an amicus brief. In denying the motion, the judge suggested that CAIR was connected to terrorists. But that’s not an evidence-based ruling by a judge — it’s an aside in a decision that didn’t touch the core issues of the case. When First Amendment rights are at stake, such speculative connections are nowhere near sufficient to impose sweeping punishments.

The Montana Sedition Act and Gobitis should mark the outer boundary for what we should tolerate in a free society. States cannot demand ideological conformity from individuals, interest groups, or religious minorities to operate in their state. If a blue state banned pro-Israel or Jewish groups — claiming that those groups sponsored violations of international law by supporting the war in Gaza or violence in the West Bank — that would be just as much of a red flag for civil liberties as Abbott’s order. Whether one agrees with CAIR or not, the entire point of the First Amendment is that government officials do not get to decide which critics are patriots and which are enemies of the state.