After U.S. President Donald Trump said he would designate the far-left anti-fascist movement "Antifa" as a "domestic terrorist organization," some argue that it is impossible to designate Antifa as a terrorist group.
Earlier, on the 17th (local time), President Trump said on social media (SNS), "I am pleased to inform many American patriots that Antifa, the pathological, dangerous, and radical left-wing scourge, has been designated a major terrorist organization." The New York Times (NYT) reported, "There are significant factual and legal problems with attempts by the government to officially designate Antifa as a de facto terrorist organization."
Antifa is short for "Anti-Fascist Action," and refers to the protest culture of far-left activists who oppose far-right forces. They became known for resisting fascists and Nazis in Italy and Germany in the 1920s, and in the United States their presence grew when they organized protests opposing a white supremacist march in Charlottesville, Virginia, in the summer of 2017.
The problem is that, unlike other groups that the United States has designated as terrorist organizations so far, Antifa does not refer to a specific organization but is merely a broad term for the protest methods of far-left activists. Antifa has no leaders, membership procedures, membership lists, or a headquarters. In the end, Antifa is closer to a concept referring to a mode of protest than to an organization, making it virtually impossible for the government to designate it as a terrorist group.
Cynthia Miller-Idriss, a scholar of extremism at American University, explained that Antifa is similar to conceptual and ideological categories such as "white supremacy" or "Islamic extremism." Miller-Idriss said, "Small groups centered on Antifa can gather in local communities to share views, but it is very difficult to see them as connected in an organizational form," adding, "Among the experts I know, not a single person has defined Antifa as an actual organization."
Moreover, there is no legal basis for the administration to designate a domestic group as a terrorist organization. U.S. federal law grants the executive branch authority to designate certain foreign groups as "foreign terrorist organizations," freeze their assets, and impose sanctions such as punishing people who materially support them. However, no such legal basis exists for domestic groups. Although President Trump said he "strongly urges a thorough investigation of those who fund Antifa, in accordance with the highest legal standards and practices," there is no regulatory basis to support that.
Mary McCord, former acting assistant attorney general, said, "President Trump can declare anything," but added, "Even if we assume Antifa is an actual organization rather than a mere ideology, there is no legal authority to officially designate it as a domestic terrorist organization." She continued, "Support for Antifa is not recognized as a criminal charge in the way that providing material support to a foreign terrorist organization is," stressing, "In other words, the president's decision has no legal effect."
There is also a strong possibility that the Trump administration's move would conflict with the Constitution. Legal experts note that attempts to designate domestic groups as terrorist organizations and to criminalize support for them directly clash with the First Amendment, which guarantees freedom of speech and expression. The New York Times (NYT) reported that because of such constraints, even when the Federal Bureau of Investigation (FBI) investigates domestic Nazi-related groups, it has treated them as criminal organizations, not terrorist organizations.
During Trump's first term in May 2020, he pointed to Antifa as the force behind the "Black Lives Matter" protests that were sparked by the death of unarmed Black man George Floyd during a police arrest. He vowed at the time to designate Antifa as a domestic terrorist organization, but did not actually carry out that promise. The NYT reported, "Even if there is no clear legal basis to justify such a declaration, we cannot assert that a second Trump administration would not do so this time."