In the aftermath of Charlie Kirk’s assassination, the Trump administration and its allies have repeatedly invoked conspiracy law to target their political opponents. White House Deputy Chief of Staff Stephen Miller vowed to “dismantle and take on the radical left” through RICO and conspiracy charges. President Trump asked the Attorney General to investigate individuals who protested him at dinner, instructing her to “look into that in terms of RICO.” And Deputy Attorney General Todd Blanche, echoing the President’s approach, asserted that protesters who merely shouted at the President were “part of an organized effort to inflict harm and terror and damage to the United States,” purportedly justifying RICO investigations.
While the weaponization of conspiracy law against social movements has a long history, these threats are part of an alarming escalation of the practice in recent years. President Trump has now repeatedly threatened to use RICO charges to go after liberal groups; anti-ICE protesters have been charged with conspiracy for allegedly blocking transport vans; and, in one case, a protester was charged with conspiracy merely for providing face shields to individuals protesting ICE in Los Angeles. Conspiracy charges have also been brought against pro-Palestinian protesters, animal activists, and anti-fascist counter-protesters. Perhaps the most notorious example is the sweeping RICO charges against Stop Cop City activists in Atlanta, which were dismissed on jurisdictional grounds only weeks ago but illustrate how easily social movement activity can be recast as conspiracy.
What makes conspiracy law such a salient threat to social movements? As I explain in the following post, the crime of conspiracy is extraordinarily vague. Though conspiracy ostensibly requires an “agreement” between two or more people to commit a crime, in practice the mere appearance of concerted action is often enough. This makes conspiracy an especially potent weapon against social movements, which, by their nature, aim to project an appearance of unity and coordination. Moreover, contemporary social movements, in virtue of their increasingly decentralized structure and mobilization strategies, tend to be more fragile than their historical counterparts and are thus particularly vulnerable to conspiracy charges.
Conspiracy’s Threat to Social Movements
An important aspect of nearly every social movement is that they are “bifarious,” containing both legal and illegal actions. Prosecutors can thus project a nefarious, organized scheme onto activity that merely appears coordinated, tying leaders, funders, and organizers to unlawful activity within the broader movement. This is precisely what the Trump administration seems intent on doing in threatening Democratic donors by connecting them to isolated incidents of lawbreaking at protests, or what Stop Cop City prosecutors attempted in targeting the Atlanta bail fund by tying it to illegal acts of sabotage.
Though conspiracy typically requires an agreement to commit a crime and the specific intent to join the agreement and further its unlawful purpose, neither requirement provides meaningful protection against prosecutorial overreach in social movement cases. In fact, both often facilitate guilt by association. To prove a criminal agreement, prosecutors need only offer circumstantial evidence of a tacit mutual understanding, which means that the mere appearance of concerted action is often enough. Every message, social media interaction, and in-person meeting between individuals becomes circumstantial evidence of conspiracy. Solidarity is recast as criminality. Indeed, the deputy director of ICE said as much in reference to dragnet approaches to anti-ICE protesters: “I think we all know that criminals tend to hang out with criminals… And so when we start to build a case, we’re going to be going after everyone that’s around them. Because these criminals tend to hang out with like-minded people who also happen to be criminals.”
Conspiracy’s intent requirement proves equally problematic in social movement cases. Generally, activists do share some intent: a mutual opposition to genocide, the exploitation of animals, or racist policing. Typically in social movement prosecutions, prosecutors foreground and emphasize this shared political purpose as circumstantial evidence of nefarious intent. For example, even though the RICO indictment of Stop Cop City activists acknowledged that “Defend the Atlanta Forest does not recruit from a single location, nor do all Defend the Atlanta Forest members have a history of working together as a group in a single location,” nevertheless, “the group shares a unified opposition to the construction of the Atlanta Police Department Training Facility.” In other words, the indictment frankly admits that what justifies the conspiracy charges—what makes these activists coconspirators—is their shared political goal. In fact, one way to read Trump’s recent order designating “antifa” as a “domestic terrorist organization” is as an attempt to push law enforcement into targeting otherwise disconnected political actors through conspiracy, based merely on shared political goals.
The mid-aughts prosecution of the “SHAC 7”—animal rights activists who led the Stop Huntingdon Animal Cruelty (SHAC) campaign against Huntingdon Life Sciences (HLS), an animal testing company—illustrates these dangers. The campaign was bifarious, including leafleting, home demonstrations, “electronic civil disobedience” like black faxes, and rogue acts of trespass and vandalism. It was confrontational, brash, and unusually effective, nearly shuttering HLS. This decentralized, nationwide movement was loosely coordinated through a central website—a kind of nerve center for the campaign—which posted information about the campaign, such as bulletins on legal and illegal actions taken against HLS.
Due in part to their success, federal prosecutors eventually brought conspiracy charges against some of the activists, including key leaders who ran the website. The activists were convicted in a trial chock-full of political speech admitted as circumstantial evidence of crime. The Third Circuit later upheld the convictions in an opinion that essentially endorsed the prosecution’s guilt-by-association approach, holding that while there was no direct evidence of a conspiracy, there was “ample circumstantial evidence from which a jury could have inferred their agreement.” For one activist, the court upheld his conviction because his “metaphorical fingerprints”—whatever that means—“were all over several of SHAC’s illegal activities.” The consequence of the SHAC conspiracy prosecution—and the broader “Green Scare” that attended it—was the decimation of the grassroots animal rights movement.
The Fragile Structure of Contemporary Social Movements
Social movements have long been vulnerable to threats of conspiracy, as demonstrated by the prosecutions of labor organizers, Communists during the Cold War, and anti-Vietnam War dissidents. Yet contemporary social movements are, for a number of reasons, more fragile than their historical counterparts and thus particularly vulnerable to such state repression.
First, they are increasingly decentralized. Social media has enabled individuals to organize and coordinate with extraordinary speed online. As Vincent Bevins explained on this blog, this has led certain tactics to become “hegemonic”—in particular, “apparently spontaneous, leaderless, horizontally structured, digitally coordinated mass protest in public squares and public spaces.” We have witnessed this pattern in the United States, where the George Floyd protests moved quickly from cyberspace to the streets, just as anti-ICE protests rapidly coordinated online before mobilizing on the ground. This form of mobilization also entails a greater volume of public expression than previous movements could produce—often with more heated rhetoric given the “online disinhibition effect”—which prosecutors can seize upon in bringing charges.
It also means that movements often arrive on the national stage before developing strong internal competencies. In the past, movements were forced to devote significant time to building power, often through in-person meetings and painstaking capacity development. While it was harder to mobilize en masse quickly, movements that reached a critical mass had developed crucial internal competencies: leadership structures, experience managing challenges, and institutional knowledge. In contrast, as Zeynep Tufekci observed from her study of movements around the world, today’s movements often only “start the hard work necessary to build a long-term movement after their first big moment in the public spotlight.”
Though social movements have become more flexible and decentralized in our age of online organizing, this structural transformation has not changed what makes movements effective. Social movements still fundamentally rely on strong social ties between activists. Sociologists commonly contrast strong ties—one’s “inner circle,” like close friends and family—with weak ties—one’s “outer circle” of more distant family and loose acquaintances. Strong ties tend to be redundant (the friend of my friend is probably also my friend) and can be visualized as a fishing net of interlocking connections. New norms and ideas tend to spread via strong ties because adopting new beliefs or behaviors requires social confirmation; strong ties, in other words, are what facilitate movement success. Strong social ties also enable activists to engage in the most effective kinds of actions, including “high-risk” activism like nonviolent direct action—activities that are often the most communicative and impactful elements of a movement.
Unlike other crimes, conspiracy directly targets collective action and thus takes aim at the social ties and speech that make movements work. Today’s movements can mobilize rapidly or appear large, powerful, and coordinated as they emerge onto the national scene—and draw state repression—but in actuality, they may be more vulnerable than ever before.
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Social movements are essential for a healthy, functioning democracy—and doubly so in our current moment, when they pose one of the few means of effectively resisting authoritarianism. Yet the prosecutorial playbook long used against social movements is now being turbocharged in the age of social media, where there is even more speech for prosecutors to weave into a conspiracy narrative. The problem is not just prosecutorial overreach but the structure of conspiracy law itself, and until we address these structural features, conspiracy law will remain a potent tool for suppressing social movements.
