Charged With “Collectivism, Mutual Aid, and Social Solidarity”

YOU NO DOUBT have heard about the history-making criminal indictment of former President Donald Trump and several allies for their efforts to overturn the 2020 election in Georgia. The indictment used a state statute intended to address organized crime. In the case against Trump, the state is defending the democratic electoral process against an organized criminal conspiracy. But in another recent case, this same Georgia statute is being wielded in a manner that weakens democracy and could lead to a catastrophic loss of First Amendment rights.

The Racketeer Influenced and Corrupt Organizations (RICO) Act, while designed to dismantle organized crime groups, has too often been transformed into a government tool to suppress protest and thwart the principles of free speech and assembly, rights secured in the U.S. Constitution. Broadly speaking, RICO statutes (both federal and those adopted by most states) make three things illegal: First, for any person to acquire assets by engaging in a pattern of criminal activities (“racketeering”). Second, for any person employed by or associated with such an enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of those activities. Third, for any person to commit any “overt act” of planning, preparing, or attempting to commit the behaviors described in the previous two situations with one or more people.

The reason these laws are so effective in taking down organized crime enterprises, such as some prominent Mafia crime families, is the same reason it is dangerous to free speech: It criminalizes indirect participation in criminal acts, including taking any step that could be perceived as preparing to break a law (the slippery slope of “precrime”). Since its adoption in the 1970s, RICO has been used in attempts to criminalize support of political protest organizations including PETA, Greenpeace, and Black Lives Matter.

Now Georgia Attorney General Christopher Carr is using these laws against Stop Cop City, a live-in organized protest against the construction of a 381-acre police training facility in Atlanta. Environmental advocates, tribal leaders, criminal justice reform advocates, and religious groups have converged in opposition to the project.

In August, Georgia prosecutors brought a sweeping indictment against 61 protesters under RICO. Fewer than half the indicted protesters are accused of violent action. Each of those accused of violence have also been charged separately, as is the just legal result of alleged violent behavior. An entirely unjust response was to indict the other half of those assembled in protest for their mere association with the people accused of violence.

The handful of alleged “overt acts” that resemble the actions of organized crime, according to the state, include providing reimbursements for ammunition, throwing Molotov cocktails, and approaching police with a rifle in a threatening manner. Serious charges, if proven true.

However, the vast majority of the acts listed in the indictment are so innocuous that nearly anyone hoping to support nonviolent protest could be swept up. These acts include receiving reimbursements for food and camping supplies, possessing phone chargers and medication, publishing political writings, and sharing blog posts. The indictment states that the accused espouse values of “collectivism, mutualism/mutual aid, and social solidarity.”

By referring to all these activities as “in furtherance of the conspiracy,” the state can cloak an obvious affront to free speech in a fancy law-and-order robe. With the lower burden of proof for RICO than for most other crimes, the state transforms the basic right to protest and engage in civil disobedience into a rampant criminal enterprise. The Stop Cop City protesters are surely impassioned — but they surely are not the Mafia.

Proper use of RICO allows the government to “tell the whole story of a crime,” according to Fulton County District Attorney Fani T. Willis, the prosecutor in the RICO case against Trump. When aimed at a true criminal enterprise, it is quite helpful that RICO allows for the exposure of each criminal act that contributed to unlawful and immoral ends. But stopping construction of the “Cop City” training facility is not itself an “evil end.” This is a group of individuals, many of whom are nonviolent, whose shared commitment to justice inspired them to join in protest. These individuals, their expression of their views on this government action, and their right to gather to make that expression are precisely what the First Amendment is designed to protect.

Instead of respecting that foundational principle, the state here lumps these individuals into one by their “ideology” of “anarchism,” defining such an ideology as in itself a threat to law and law enforcement. In so doing, the state attaches community organizing and any rightfully expressed action by any protester that might be construed as support for “anarchy” to an indictment for criminal conspiracy.

It is our duty as citizens to heed the lessons of history. When the government begins to criminalize political speech and when a state can punish individuals for even preparing to act in support of a political cause, then we must strongly push back and hold those officials accountable. If we don’t, the next indictment might include the writers and readers of this very magazine.