Executive Summary

In the grim days following the mass shooting in Orlando, Florida, news commentator and retired Lieutenant Colonel Ralph Peters appeared on Fox News, saying: “Not all Muslims are terrorists, but virtually all terrorists are Muslim.” Peters’s statement represents the sort of venomous rhetoric that has emerged all too often this election. Republican presidential nominee Donald Trump has put an immigration ban on Muslims at the core of his nativist pitch to voters, alleging that American Muslims and mosques are knowingly harboring terrorists.

While many Americans, including President Obama, have spoken out against Trump’s characterization of American Muslims as terrorists, there has been little opposition to the premise that all terrorists are Muslims. The prevalence of Islamophobia has been coupled with a selective definition of terror under US law, contributing to the belief that all terrorists are Muslims and hence that all Muslims be viewed with suspicion, justifiably hated, excoriated, and even banned. At the same time, amplification by social media reinforces hostile political rhetoric, making legislative reform that protects Muslims as effectively as the rest of the population more difficult.

This paper dissects the premise that terror is a particularly Muslim problem and analyzes the key role that social media is playing in this issue. The paper begins with a quantitative snapshot of both anti-Muslim and anti-Islamophobic Google searches and statements made on social media. It then moves to a qualitative analysis of the low rates of reporting and prosecution of hate crimes against Muslims, paying particular attention to differing standards of proof required for these prosecutions. The second section looks at terror prosecutions of Muslims, noting how speech—and especially online speech—is treated very differently by courts when it involves Muslim American defendants and the mere possibility of terror connections. In paying particular attention to prosecutions under the Material Support for Terrorism Statute, we note how concerns raised in the prosecutorial context of hate crimes (such as requirements of intent and purposefulness) are summarily discarded when they arise in relation to terrorism cases.

The analysis reveals a deep double standard between the identification and conviction of domestic and foreign terrorism. Under US law as it exists today, there is no provision criminalizing the material support of a domestic terror organization. This means that statements made by white supremacist groups that incite violence against minorities are provided First Amendment protection and cannot be prosecuted without meeting a very high standard of proof. The consequence is that hate speech against Muslims is not simply tolerated and largely unpunished, but normalized into a valid political position. Second, there is no legislation criminalizing material support for domestic terrorism, or even actual acts of domestic terrorism. What has no legal reality in turn has no moral or social reality. The statement that “all terrorists are Muslim” is created and affirmed in America by the language of statutes that recognize only “foreign” organizations as the sources of terrorist acts.

There are different labels and legal standards for “hate speech” and “hate crime” as compared to “material support for terror” or “conspiracy to commit a terrorist act.” Convictions are made on the basis of who engages in them and where the organization is located instead of the actual act or speech being criminalized. In this way, domestic terror is rendered invisible, and the imagined threat of foreign terror magnified, its incipient paranoia implicating all American Muslims within its folds of suspicion, surveillance, and discrimination. All forms of terror should be equally punishable, especially in a legal system that justifies pre-emptive policing and already monitors social media platforms and speech for potential extremists.

Key Findings

• A survey of online activity (Google searches, Tweets, and Facebook posts) reveals Islamophobic statements are widespread. On average, violent anti-Muslim Google search terms are about half as popular as anti-Islamophobic searches. In this paper’s Twitter dataset, for every ten tweets containing an anti-Islamophobic message, there were seven containing anti-Muslim keywords. On Facebook, posts containing anti-Muslim language outnumbered posts containing anti-Islamophobic language. On candidates’ Facebook pages, there were four times as many anti-Muslim posts as anti-Islamophobic posts in the period under study. The Anti-Defamation League and the Southern Poverty Law Center suggest a prevalence of such rhetoric can lead to an increase in the number of hate crimes against Muslims.
• Prosecution and reporting of hate crimes against Muslims remains low; in cases like Hicks v. United States and the recent murder of a Muslim Imam in Queens reveal a reluctance to charge attackers under the federal or state hate crime statutes, consequently making “hate crimes” against Muslims invisible.
• Under Elonis v. United States, the Supreme Court of the United States deemed that threats of violence against neighbors, co-workers, and a kindergarten class posted on Facebook were deemed protected by the First Amendment of the United States Constitution and not a “true threat” unless the prosecution could prove subjective rather than objective intent, setting a precedent for making hateful speech online difficult to prosecute.¹
• But the First Amendment protections afforded to others are eroded for Muslims, particularly when it comes to their online activity. Under Mehanna v. United States, free speech protections are not considered when evaluating the defendants’ online postings in support of ISIS. The fact that others who sympathize with designated foreign terrorist organizations frequented websites visited by the defendant was adequate proof of co-ordination under the Material Support for Terrorism Statute. Furthermore, purely online actions can constitute the basis for conviction under the Material Support for Terrorism Statute without consideration of recklessness or negligence.
• The language of the Material Support for Terrorism Statute only permits conviction for the support of foreign terror organizations. The US does not currently have any legislation criminalizing domestic terrorism or material support for domestic terrorism even though it has been recognized by officials at the Department of Justice as a greater threat than foreign terrorism.

Recommendations

• As is the case in the United Kingdom, the US Material Support for Terrorism Statute needs to be amended to apply to all and not only “foreign” terror organizations.
• A single standard of First Amendment protections should be applied in cases involving threats of hate related violence and material support of terror online.
• Given the escalating numbers of hate speech against Muslims online, a better reporting and enforcement system needs to be developed and implemented for hate speech and hate crimes against American Muslims. The low reporting rate of hate crimes suggests that most American Muslims do not feel comfortable taking their experiences to the FBI and other institutions. For every local police department that has an anti-terror task force, there should be one devoted to the investigation and prosecution of hate crimes with adequate allotted resources to do so.
• As private corporations, social media platforms like Facebook and Twitter must do a better job of implementing their own guidelines that already prohibit the posting of hate material against a particular group. This requires initiative from these platforms because, unlike the posting of pro-terror materials, posting Islamophobic material is not a crime in the US.²