Tal Fortgang joins Brian Anderson to discuss his feature story from the City Journal winter issue, “The Rise of Civil Terrorism.”
Audio Transcript
Brian Anderson: Welcome back to the 10 Blocks podcast. Today we’re joined by Tal Fortgang to discuss his story from our winter issue, “The Rise of Civil Terrorism.” I’m Brian Anderson, the editor of City Journal. Tal is a legal policy fellow at the Manhattan Institute. His writing on law, political theory, religion and culture has appeared frequently in City Journal and also in Commentary, National Affairs, the Wall Street Journal and other publications. He’s also published legal scholarship in the NYU Journal of Law and Liberty and the Texas Review of Law and Politics. So Tal, welcome.
Tal Fortgang: Thank you, Brian. It’s great to be here.
Brian Anderson: In this essay, which was in our winter issue, “The Rise of Civil Terrorism,” you write that pro-Hamas protestors have invented a new kind of civil disobedience, one whose point is to punish the public. I wonder if you could elaborate on that a little bit and what exactly you mean by civil terrorism and how that concept differs from traditional civil disobedience in American history.
Tal Fortgang: I’ll give you a little bit of backstory that will hopefully illuminate why I undertook this analysis and why I think the framework of civil terrorism is so important to understand this phenomenon. I was living in Washington, D.C. in 2024 and I would walk about a half hour from my apartment in downtown D.C. near the White House where I worked. Over the course of 2024, I saw on federal property, and of course there’s a lot of federal property in downtown D.C. parks and statues and monuments and so on, this federal property was being defaced regularly with truly obscene pro Hamas messaging: “Hamas is coming,” “martyrs are coming, death to Zionists,” “death to America” and so on, and regularly throughout the year there would be streets closed because of unlicensed demonstrations shutting down traffic, which of course is a pattern that was replicated outside of D.C., notably in New York, in San Francisco and Chicago, in many other cities, and I heard lots of intelligent people commenting on this phenomenon and wondering aloud why it had not yet petered out.
After all these demonstrators were acting in a remarkably counterproductive way. What they were saying was alienating, intimidating, certainly not very persuasive to the people they are ostensibly trying to persuade, and that’s where I think the paradigm of civil terrorism comes in. You have to understand that the people who undertake, excuse me, these random acts of lawlessness, vandalism, blocking roads, occasional assaults and other unlawful activity, they’re not trying to persuade at all, which is why their actions do not peter out on their own. In fact, indulging them, just emboldens them. They believe that they are successfully intimidating the American people into changing their policy positions. And unlike civil disobedience where cracking down in a sense precisely what the civilly disobedient want to draw attention to the injustice of the situation, civil terrorists are really employing the logic of terrorism itself. The violence is the point, not drawing attention to the injustice, but blocking the roads, making people’s lives inconvenient and miserable in order to change a political status quo. That is the point. I call it civil terrorism rather than the straight up terrorism because terrorism of course has come to refer to more dramatic acts of violence and one could certainly argue that civil terrorism is violent in its own way, but it does fundamentally share a lot in terms of tactics with civil disobedience movement, which is rightly venerated in this country, except that people who engaged in civil disobedience were willing to suffer the consequences for their misdeeds. In fact, they welcomed that possibility. Civil terrorists are not looking to do that.
Brian Anderson: This raises a very practical question. How in your view should policymakers or law enforcement officials draw the line between acceptable protest and public coercion? I guess these acts are very illegal, but they do fall short, at least to this point from what we would consider violent acts of terrorism that result in people’s deaths. But you are sometimes putting people at risk here, right?
Tal Fortgang: Yeah, and the relevant distinction is between, as you say, protected protest and what I would call here is just, it’s not necessarily violent, but it is unlawful demonstration. Our laws in the First Amendment to our constitution carve out a very large space for protest. It can be quite boisterous and the contents can be quite offensive, but there are places, times and manners in which it is allowed to occur, where in which it is protected, and that involves not taking over city streets, at least not without the proper permitting. It involves keeping your voices and your megaphones and other sounds to a reasonable decibel level and so on. Those kinds of content neutral restrictions are in fact crucial to preserving actual freedom of speech and actual freedom of protest and conflating what these people are doing with protest, I think is quite misleading. It is not a protest to block an interstate holding signs.
That is disorderly conduct. It is a violation of perfectly reasonable and long recognized restrictions on in what ways you get to express yourself and you cannot cleanse a criminal act merely by engaging in expression at the same time. That, there’s no such loophole through our laws. So what should law enforcement do? The first thing is simply to enforce the laws on the books. All of these actions that I talk about are illegal. I’m not trying to get anyone prosecuted for standing on a sidewalk and yelling “death to Israel” or even “death to America.” I have no interest in prosecuting speech like that. But when you deface monuments, when you engage in acts of vandalism, disorderly conduct, you should be prosecuted for that. That is much easier said than done and not merely because most of these actions take place in deep blue jurisdictions where there is not a ton of prosecutorial appetite for going after these civil terrorists.
The incentives are simply not quite there because most of these unlawful actions by design are misdemeanors. They’re minor crimes for which prosecution doesn’t necessarily pay. It would take the District of Columbia quite a bit of resources, time and money and effort, to put people in prison for vandalizing statues or in case of the federal property, it would take the Department of Justice quite a bit of time and effort and it’s probably not worth it. Now, there are two approaches to overcoming that mental obstacle and that incentive obstacle that really involve understanding civil terrorism and why it is actually a threat. We know that these groups are trying to disrupt our democratic process by intimidating rather than persuading, and they’re engaged in dangerous and deeply disruptive behavior, and that means thinking a little bit more creatively about how to prosecute.
The federal government can and should get involved by invoking statutes like RICO, the anti mafia, anti organized crime statute, to look at the organizations that deploy civil terrorists for their own ends. Many of these are well-heeled, very well organized nonprofits, if you want to call them that a skeptic might call them sham nonprofits that seem to have quite a bit of expertise in deploying civil terrorism to achieve their ends, and they are, in effect, organizing criminal activity. And if you can prosecute the leadership of those organizations under RICO, you might be able to threaten the leadership with many years in prison. You can exact civil penalties that could cripple the organizations that exist only to make American life miserable. There are other statutes that the federal government and state governments can use to treat these lawless actions with the severity they deserve. And as I point out in the piece, this could actually be extremely fruitful along a number of different dimensions because of what we know about these organizations, not just that they have a lot of money and that they deploy their resources in disruptive ways, but that many of them have been connected to foreign terrorist organizations. One of the groups that proudly showed its name on a lot of civil terrorist paraphernalia, banners and signs and bandanas, was recently deemed a sham charity fundraising for a Palestinian terrorist group, and there are lawsuits that have been ongoing for decades now that implicate many of these groups in terror financing, so this may just be the tip of the iceberg, in which case, aggressive civil terrorism prosecutions can help pry open a whole additional can of worms.
Brian Anderson: Well, relatedly Tal, this week the new Attorney General Pam Bondi announced charges against three violent Tesla arsonists for attacks against Tesla properties, I believe in Colorado, Oregon and South Carolina was the third place. These were protests directed against Elon Musk. I wonder, do you see these kind of lawless actions against Musk’s work with DOGE as part of this same civil terrorism trend?
Tal Fortgang: It may be a little bit premature because the organizational structure around anti-Musk or anti-DOGE organizing principles seems to be less developed than the anti-Israel anti-Western and then separately the environmentalist wings of the civil terrorist movement. But as a matter of first impression in terms of how we might conceptualize what is going on here with all of this violence against Tesla, the vehicles, the dealerships, et cetera, I think it is perfectly logical to think that there are Americans who have a certain political view, agitators who want a change in policy, and the way they think they can best achieve that is through random acts of disruption or even violence to intimidate Americans out of buying Teslas or affiliating themselves with Elon Musk or supporting this administration because at a certain point, the threat of violence, the threat of being harmed outweighs whatever political view you may have organically. Well, if we keep bombing people’s Teslas, not only will they stop bombing Teslas, they’ll say, okay, okay, we’ll give the violent demonstrators and terrorists what they want. That’s the logic of terrorism.
Brian Anderson: If you are thinking of buying a car, maybe you don’t want the hassle of having your car spray painted “Nazi” or working for a Tesla dealership or something like that. We haven’t talked yet about the elite universities, but your view is that they’ve enabled this kind of wave of civil terrorism to some degree by tolerating an increasingly radical campus culture that has involved many of these protests against Israel. How do we get from academic free speech to this kind of academic or campus indulgence of what has been extreme behavior and what should be done about it?
Tal Fortgang: Yeah, and that’s not a simple question. I do think that civil terrorism has in many ways been cultivated on campus where groups like Students for Justice in Palestine routinely vandalize buildings, harass their Jewish and Israeli classmates, block off parts of campus and declare them “Zionist-free zones,” all of which are unlawful, not all of which are crimes, some of which may be violations of civil rights law that leave groups like SJP liable to civil suits.
Brian Anderson: Universities have a responsibility here to maintain order on their campuses as well, right?
Tal Fortgang: That’s right. And ultimately the total corruption of these institutions and the configurations that we see have to be laid at the feet of an administration. You can look at a place like Columbia refused repeatedly to deal with violations of school rules and violations of the law because they perceived those violations at least as expressive activity. Oh, it’s vandalism. That’s just an expression of speech, and they tolerated it rather than laying down the law early saying it doesn’t matter if you are vandalizing buildings or preventing your fellow students from traversing campus freely for a political cause. It doesn’t matter what kind of activists you are being in the process of violating our rules, you are violating our content-neutral rules that govern conduct. Once you fail to lay down the law, you’ve blurred the lines between speech and conduct in a way that you think may be solicitous of speech, but actually just makes it harder to distinguish between speech and conduct where that distinction is crucial to maintaining a university’s fundamental character as a place where people can go to learn and a place where students can actually protest, genuinely express their opinions and their views without descending into things that make civil discourse completely impossible, like acts of intimidation. Though, the Trump administration is obviously now hammering away at Columbia and they’re doing so in a rather heavy handed way, some of which I personally approve of and some of which I don’t, but one way or another, you have to point several fingers at Columbia for letting it get this far.
Brian Anderson: Right. Some of these problems could really be solved very quickly by university administrators, just by punishing students, right, and expelling, expelling students, in some cases.
Tal Fortgang: That’s all they had to do for years.
Brian Anderson: You wrote about Barnard recently and in the context of a recent pro-Hamas library takeover, you make the case that a school has both the right and the responsibility to expel students who engaged in the activity. I guess the leniency does send a dangerous message not just to students, but to the broader public.
Tal Fortgang: That’s exactly right. When these students put on masks and other face coverings and engage in what they know is rule breaking and occasionally law breaking, they are testing the administration to see whether the supposed adults in the room will assert themselves and say, “we are running a university here. We are not simply maintaining a campus for you to use as your protest canvas. We have certain educational purposes here.” They’re testing whether those positions are true. We’re going to violate the rules and will dare you to expel us. All that union mentality, which doubles as a civil terrorist mentality, they can’t arrest us all. They can’t prosecute us all.
For a university in particular, it happens to be extremely easy. You expel them and you send the message: We tolerate free speech. We have a circumscribed view of what free speech is. It might even be an expansive, yet circumscribed view, aligned with the First Amendment, but one way or another we make room for student protest not for disruptive student demonstrations because those demonstrations force the cancellation of classes. They force students into silence at best. It has a chilling effect on speech. If you know that you are going to be harassed and possibly assaulted for taking opinions contrary to the demonstrators’ opinions. You are left with the impression these activists are a little bit unhinged and who knows what they will do next. It is natural to try to talk them down to reason with them, to engage with them within the paradigm of persuasion. The thing to recognize and what I think the paradigm of civil terrorism adds is that they are not trying to persuade, they’re trying to intimidate, and you have to meet that with strength.
Brian Anderson: Well, thanks very much Tal. A very useful concept, I think, you’ve introduced into the debate. Our guest has been Tal Fortgang. You can find his writings for City Journal, including the essay we’ve been primarily talking about here, “The Rise of Civil Terrorism” on his author page, which we will link in our description. You can also find City Journal on X @CityJournal and on Instagram @CityJournal_MI. If you’ve enjoyed this podcast today, please give us a nice rating on iTunes and tell. Great to have you on, and thanks for doing these terrific pieces for us. Thank you so much.
Photo by Probal Rashid/LightRocket via Getty Images
