Dozens of law enforcement officers have been investigated or charged for their participation in events culminating in the January 6, 2021, insurrection at the US Capitol. Whether or not the United States labels that attack “domestic terrorism,” there is no question that the actions of those who violently overran police, stormed into the Capitol building, and attempted to prevent the certification of the Electoral College vote met the definition of domestic terrorism in the US Code: “acts dangerous to human life that are a violation of the criminal laws of the United States or of any State” and “appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.” That active-duty law enforcement officers would take part in such an assault on US democracy is not only abhorrent to the rule of law that they swore to uphold, but also presents a serious hurdle to effectively combating domestic terrorism.
The United States cannot surmount this hurdle until law enforcement eradicates extremists from within. It is easy enough to fire an officer after the officer is charged with obstructing an official proceeding of Congress or violently assaulting a US Capitol Police officer, but the question is: Why were some of these officers still on the force when they participated in the events at the Capitol? Some were open about their extremist views before January 6. There is no hiding behind the First Amendment here because it does not give law enforcement officers carte blanche to espouse extremist views, just as it does not given them carte blanche to participate in a violent insurrection.
Terrorism prevention relies on law enforcement at every level—local, state, federal, and international—working together and working with community members. US officials have praised community members for coming forward with key information about extremist threats. However, some of the greatest challenges have come from the trust deficit between law enforcement and the communities they serve. For example, Muslim communities have felt targeted by law enforcement investigations into Islamist extremist terrorism. The trust deficit between the police and communities of color, LGBTQ communities, and others who are often the targets of domestic extremist violence may be even more pronounced. It is impossible to bridge this trust deficit while some law enforcement officers—even if only a small percentage—espouse white supremacist, anti-Semitic, and anti-government sentiments; join or support unlawful private extremist militias; or convey disinformation and debunked conspiracy theories.
This can and must change.
There is no First Amendment right to be a police officer, and those who want to wear the badge must be committed to the rule of law and its applicability to all of our community members.
To be sure, law enforcement officers have First Amendment rights when speaking in their personal capacities on issues of public concern. When law enforcement officers speak in their official capacity, however, their speech is not protected by the First Amendment because they are speaking as public service “employees” and “not speaking as citizens for First Amendment purposes.” And the Supreme Court has been clear that even when public employees speak in their personal capacities on matters of public concern, they can be subject to “speech restrictions that are necessary for their employers to operate efficiently and effectively.” In the context of law enforcement, courts have held that, because police departments operate like paramilitary units responsible for maintaining public safety and order, they have even more latitude than other government employers in disciplining officers for speech or expression that is inconsistent with or undermines their mission. It seems indisputable that expressing white supremacist, racist, or anti-government views is utterly incompatible with building the trust that is necessary for community members to have confidence that they can safely report threats, harassment, and information about domestic extremists to law enforcement. Similarly, it seems beyond question that spreading disinformation that the 2020 election was stolen is inimical to important governmental interests within law enforcement to maintain discipline, promote efficiency, and build public confidence and respect.
Law enforcement departments must not use the First Amendment as a shield for failing to take proactive action against extremists within their ranks, nor should they fail to vet for extremism among those applying for these critical positions of trust. There is no First Amendment right to be a police officer, and those who want to wear the badge must be committed to the rule of law and its applicability to all of our community members. The federal government must make a commitment to weeding out extremism in its law enforcement agencies, and back that up with real action. Additionally, it must encourage state and local governments to do the same through education, legal guidance, and financial incentives.
National security experts often refer to the “insider threat” as one of the most significant challenges to protecting the homeland, its people, and its innovations and technology. The insider threat in police departments is an equally urgent challenge that must be addressed as part of any effective counterterrorism strategy.
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Mary McCord is a nonresident senior fellow with the Atlantic Council and the Executive Director of the Institute for Constitutional Advocacy and Protection (ICAP) and a Visiting Professor of Law at Georgetown University Law Center. Previously, McCord was the Acting Assistant Attorney General for National Security at the US Department of Justice from 2016 to 2017 and Principal Deputy Assistant Attorney General for National Security from 2014 to 2016. McCord was also an Assistant US Attorney for nearly 20 years at the U.S. Attorney’s Office for the District of Columbia. McCord has written about domestic terrorism, unlawful militia activity, public safety, and the rule of law for publications including the Washington Post, New York Times, Wall Street Journal, Los Angeles Times, The Atlantic, Slate, Lawfare, and Just Security. She has appeared on NPR, PBS, CNN, MSNBC, ABC, and other media outlets.
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