Racial terrorism by organized hate groups and “lone” vigilantes represents a growing societal danger. Increasingly, planning and recruitment for such plots are conducted through online communication channels. This essay sheds new light on how little-known federal civil rights laws, originally enacted after the Civil War, can be applied to the use of online platforms to plan and discuss racially motivated attacks. The Ku Klux Klan Act of 1871 gave rise to Sections 1985 and 1986 of Title 42 of the United States Code, which are still in effect today. Section 1985 establishes 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, establishes a cause of action against persons who are aware of a conspiracy under Section 1985 but fail to act to prevent it from being carried out.

This essay first discusses the background, text, and legislative history of §§ 1985 and 1986. It then draws on sociological research that sheds light on the nature of the contemporary white supremacy movement and how white supremacists use online communication platforms, which make it difficult for outsiders to learn about and disrupt conspiracies before they materialize. It then discusses how § 1986 can be used as a tool to incentivize members and bystanders who are part of online networks where such conspiracies are discussed to report and disrupt them before they manifest, drawing on the legal and psychological literature on bystander motivations and behavior. Finally, it discusses potential First Amendment challenges to § 1986 claims. It is concluded that § 1986 can and should be used more broadly to combat white supremacist terrorism.

Introduction

The resurgence of violent extremism is at a critical inflection point.1 In particular, racialized violence, both by organized groups and individuals, poses a serious and growing threat.2 Such groups and individuals have increasingly used online communication channels to organize and prepare for action.3 Radicalized groups are often largely opaque and impenetrable to outsiders due to their closed networks, group solidarity4, and coded language or symbology.5 Furthermore, law enforcement officials are generally unable to conduct preemptive surveillance or intercept online communications based solely on extremist ideology.6

Awareness of the threats posed by such groups therefore often does not arrive in sufficient time to prevent attacks or disrupt recruitment and radicalization.7 Community members are therefore the most likely people to have sufficient prior knowledge of groups and individuals who are preparing to cross the line from radical ideology to terrorist action, even if those community members do not intend to engage in such activities. that action.8 However, members of the community generally share the ideology of radicalized groups and individuals, or at least have sufficient affinity with them. 9

A wide range of legal tools can and should be called upon in the current fight against racial terror. One of these derives from an earlier era of racial terror: the post-slavery struggle against white mobs, individual vigilantes, and terrorist organizations such as the Ku Klux Klan. Several civil rights laws enacted in the wake of the Civil War pursuant to Congress’s powers under the Reconstruction Amendments (i.e., the Thirteenth, Fourteenth, and Fifteenth Amendments) were specifically intended to deter and punish those who attempted to use private violence as an alternative means of enforcing white supremacy and black subjugation once slavery had been abolished and racial subordination laws had become illegal in law (if not always in reality).

This essay focuses on two such federal statutes originally enacted as part of the Ku Klux Klan Act of 1871:10 42 U.S.C. §§ 1985 and 1986. Section 1985 establishes a federal civil cause of action against those who conspire to deprive a person of federally protected civil rights;11 section 1986 establishes a cause of action against those who are aware of such a conspiracy but fail to act to prevent it from being carried out.12 The Reconstruction Congresses that debated and adopted these provisions were well aware that the preceding centuries of slavery, racial violence, and subjugation of blacks had been carried out through an interconnected web of government and private action. They therefore knew that the full realization of the civil rights promised by the Reconstruction Amendments would require an equally robust system of public and private action. Just as the American regime of slavery, apartheid, and racial terror could not have been imposed through state action alone, it could not be dismantled through state action alone.

This essay builds on Professor Linda Fisher’s masterful article Anatomy of an Affirmative Duty to Protect: 42 U.S.C. Section 1986,13 (1) updating her findings for the digital age and (2) incorporating interdisciplinary insights from the fields of sociology and psychology to describe how § 1986 can apply to bystanders who are privy to white supremacist individuals and groups’ use of online platforms to plan and discuss their plots. Part I of this essay discusses the history of slavery and the Reconstruction Amendments, which were the context for the civil rights statutes enacted in the wake of the Civil War. Part 2 then explores those civil rights statutes, with a particular focus on the purposes and history of §§ 1985 and 1986. Part 3 of this essay, drawing on sociological literature, discusses the nature of the contemporary white supremacist movement and how the way white supremacists use online communication platforms makes it difficult for outsiders to become aware of conspiracies and disrupt them before they become reality, even when such plans are generally widely known to members of those white supremacist online communities. Drawing on psychological literature, Part 3 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 them and disrupt them before they are carried out. Part IV of this essay briefly addresses potential challenges to Section 1986 claims under the First Amendment, insofar as Section 1986 requires disclosure of information by persons with knowledge of white supremacist plots. The essay concludes by arguing that Section 1986, while not a complete solution to online radicalization and white supremacist conspiracies, can and should be used much more broadly.