Texas targets antifa because Trump said so, I guess

But targeting an ideology is still unconstitutional

An Antifa member carries a flag during a protest in Los Angeles, May 2021 via Shutterstock.ocm

Last week, after President Trump issued a National Security Presidential Memo that targeted groups for heightened federal security based on their ideologies, I wrote:

A missive from the most powerful man in the world carries so much force that it is, inevitably, a blunt instrument. When the president uses his pen to take aim at anything, it will cause a chilling effect. [...] What will the overreactions to this new memo look like?

Enter Texas Attorney General Ken Paxton, who issued a press release on October 7 announcing that his office, “building on President Trump’s bold actions,” had “launched undercover investigations into various groups affiliated with left-wing political violence known to be operating in Texas.”

The release gives three examples of the kind of violence Texas is looking to root out: A shooting at an ICE facility in Dallas, a shooting at an ICE facility in Alvarado, and the assassination of Charlie Kirk. Of those three incidents, two of the attackers — Kirk’s assassin and the Dallas shooter — appear to have been working alone, at least as far as anyone knows today.

The Alvarado shooting, which has already led to at least 15 arrests, clearly seems to have involved a coordinated group. Indeed, infiltrating that group might have prevented the attack, which would be a good reason to infiltrate such groups. But that’s not what the press release announces.

Instead, the attorney general’s announcement shares the same problem as Trump’s memo. Namely, it focuses on targeting an ideology rather than an action. It’s not unlawful to identify as antifa because we don’t criminalize ideologies in this country, for good reason. Freedom means very little if it doesn’t encompass the freedom to hold the ideas many of us believe to be wrong.

If Texas law enforcement tries to infiltrate every group that identifies as antifa-adjacent, it’s going to be infiltrating a lot of knitting circles, vegan clubs, and faculty groups (including a FIRE client), the vast majority of which would catch the vapors if forced to watch a video of violence, let alone contemplate performing it with their own hands.

And even if they had the manpower, it would still be unlawful to target these groups simply for their beliefs. So presumably, law enforcement is going to narrow its scope to focus on a particular kind of antifa-aligned group — the kind that is actively planning to commit violent acts.

But if law enforcement is capable of identifying which groups want to commit violent acts, then why bring ideology into it?

The legendary and well-respected law enforcement agencies in the state of Texas would, I am sure, try to stop a far-right terror attack just as soon as they would a far-left terror attack. So what’s the point of targeting an ideology in this press release?

It makes the actions that follow constitutionally suspect by suggesting an unconstitutional motive: the targeting of political opponents. There’s no good reason to do it and a really good reason not to do it: If a group is targeted unlawfully, the evidence might be inadmissible, if it is, in fact, engaged in criminal activity.

The only reason to bring ideology into it, as far as I can tell, is the inspiration of the president’s memo. A blunt instrument, indeed.