While Craig is away on a well-deserved vacation, we wanted to do things a little bit differently, and share with you one of our favorite episodes from the Chicago Bar Association’s @the Bar podcast. This episode is Defending Against Domestic Violent Extremism: A Discussion with Brian Michael Jenkins. We hope you enjoy it!
In this episode, host Jonathan Amarilio speaks with one of the world’s leading authorities on terrorism and the man famously known for predicting 9/11, Brian Michael Jenkins of the RAND Corporation. They discuss Mr. Jenkins’ historical work as an advisor to many U.S. Presidents and governments on terrorism, as well as the current state of domestic political violence and terrorism in America. In this riveting discussion, Mr. Jenkins shares his advice for how we can develop a pragmatic strategy to combat the rising tide of violence in today’s tumultuous world.
Special thanks to our
Kate Nutting: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Kate Nutting, producer of Lawyer 2 Lawyer. While Craig is away on a much-needed vacation, we’re going to do things a little bit differently this time and share with you a fantastic episode from the Chicago Bar Association’s @theBar podcast. This episode is Defending Against Domestic Violent Extremism A Discussion with Brian Michael Jenkins. Host Jonathan Amarilio spoke with one of the world’s leading authorities on terrorism and the man famously known for predicting 9/11 Brian Michael Jenkins of the RAND Corporation. You can find more great @theBar episodes on the Legal Talk Network site or wherever you find podcasts. We’ll also include a link in the description. Here’s the episode, we hope you enjoy it.
Jon Amarilio: Hello, everyone, and welcome to CBA’s @theBar, a podcast where we have unrehearsed conversations with our guests about legal news, topics, stories and whatever else strikes your fancy. I’m you host, Jon Amarilio of Taft Law and joining me on the pod today is Brian Michael Jenkins of the RAND Corporation. Brian is something of a legend in the field of counterterrorism. A former Green Beret and Fulbright scholar, he exchanged the MK for an MA and went on to become the chair of the political science department at RAND, one of the nation’s most respected and influential think tanks. Among other positions, Brian has served on the White House Commission to Aviation Safety and Security as an advisor to the National Commission on Terrorism and as an Advisory Board Member to the U.S. Comptroller General. He is currently a senior advisor to the president of RAND and not coincidentally has served as an advisor to nearly every president of the United States since well, about when I was born. He is however, perhaps best known as the man who predicted 9/11. Brian is here to talk with us today about his most recent work developing a pragmatic strategy for countering domestic political violence, something I know all of our listeners will be interested in as it directly relates to preserving the rule of law. Brian, welcome to @theBar.
Brian Michael Jenkins: Thank you very much Jon.
Jon Amarilio: So Brian, before we get started, I have to ask something that’s, you know, arguably a little bit off topic. But as I was doing my research, my due diligence for this interview today, I kept coming cross-references to you as, as I said in the intro, the man who predicted 9/11. Talk to me about that. What gives you that moniker.
Brian Michael Jenkins: It is actually incorrect. I didn’t predict 9/11. It’s simply that in constantly listening carefully to a terrorist we’re saying and looking at the documents that were found at terrorists’ hideouts in various parts of the world and looking at all of that, it became apparent that the idea of hijacking an airplane and crashing it into a city, crashing it into buildings, was something that was on their mind. It wasn’t necessarily a concrete plan. It was more aspirational.
Jon Amarilio: Okay.
Brian Michael Jenkins: But certainly, we did see a number of cases. For example, in the 1980s, one of the hijackings or attempted hijackings in 1986, the original plan was to hijack the plane in Pakistan and then fly it and crash it into Tel Aviv. Things like that kept reoccurring. In 1995, there was this so-called Bojinka plot that was discovered in the Philippines where jihadist terrorists had planned to conceal bombs in about 11 or 12 airliners flying across the Pacific. But another part of that same plan was to crash a plane into CIA headquarters.
So this was bouncing around in their minds and I simply started saying in the 1980s, you know, we do have to accept the possibility that at some time in the future, terrorists will attempt to hijack a plane and crash it into a tall building or an urban area. And from that, of course, when 9/11 occurred, people went back and they found those old mentions and said, “Aha, he predicted it.” No, he thought about it because a terrorist about it.
Jon Amarilio: Why weren’t they listening to you then?
Brian Michael Jenkins: You know, in part, there was a reluctance to listen to that, because it was such a horrendous scenario and you know, what can we do about that? You know, I remember in terms of the 1993 World Trade Center bombing, I was then at Kroll Associates and we were called in to assist in helping them deal with crisis and design new security measures and I was placed in charge of the red team, the bad guys. And the real hero of this story is a gentleman by the name of Charlie Makish–
–who was the manager of the World Trade Center and he said, “Whatever Brian and his team come up with, the blue team, which were engineers, security specialists, architects have to have some kind of a response. And so we had a number of charts showing events that occurred regularly but would not be catastrophic and damage things that would be more damaging, but less likely. And then we had one set of charts that things that were really black swans, if you will statistically, but could have catastrophic consequences. The first bullet on that slide was plane crashing into one of the towers, you know.
Now, why do we think about that? I thought about that because there had been an old case where a B-25 bomber flying in the fog had crashed into the side of the Empire State Building.
Jon Amarilio: All right.
Brian Michael Jenkins: It wasn’t inconceivable. this created a ferocious argument between the red team and blue team because the blue team said, “Well, what can we do about that?” I mean, mount missile batteries on top of the, you know, windows of the World Restaurant on 110th floor and shoot down planes.
Jon Amarilio: You could have security at airports.
Brian Michael Jenkins: Yes. I mean, that’s one thing and that was inadequate, quite frankly at the time. But it did ultimately lead to a careful analysis that they decided that in 1993, it took seven hours to evacuate the tower. What had happened is the bomb went off in the subgrade parking, smoke went up through the stairwells, they did not have the emergency lighting and so in pitch black smoke filled stairwell, people had to climb down, in some cases, a hundred floors. They came out of the building into a snow flurry looking like coal miners coming off shift. Fortunately, only six people were killed in that attack but about a thousand were injured mainly smoke inhalation.
Jon Amarilio: So was the attitude just fatalistic?
Brian Michael Jenkins: No, the attitude was what we can do is we can get people out of this building a lot faster than we did in 1993. And so they modified the stairwells, they conducted regular drills wherein an evacuation Marshall would take people down at least a couple flights of stairs and on the morning of 9/11 when there was probably an estimated 15, 20 thousand people in the towers, in less than an hour, they got them all out.
Jon Amarilio: Saved a lot of lives.
Brian Michael Jenkins: Everyone below the floor where the planes went in, in fact, got out. Those who were cut off above unfortunately, went down with the towers. But we thought and looking at that event, when the towers went down, we thought we just lost 20,000 people here.
Jon Amarilio: Yeah.
Brian Michael Jenkins: And it wasn’t until the following days and weeks that the death toll went downward as little by little people, realized no more got out. No, that one’s okay.
Jon Amarilio: I remember the initial estimates, they were saying 10,000 people.
Brian Michael Jenkins: Yeah.
Jon Amarilio: And I think the final count was somewhere closer to 3,000, something–
Brian Michael Jenkins: 2,000.
Jon Amarilio: Okay.
Brian Michael Jenkins: 2,000, 2,200 or so.
Jon Amarilio: Let’s shift over to something that I hope people will be listening to even more closely on. You were featured late last year in West Point Sentinel discussing the elements of what you see as a pragmatic strategy, emphasis on pragmatic, for countering domestic political violence. So let’s go there. You know, this is a topic that seems to be in the news at ever increasing rates these days, be a stories about the January 6, right, at the Capitol, kidnapping and assassination plots of you know, the Michigan Governor comes to mind, politically motivated mass shootings, which sadly are becoming almost regular event now. Obviously, all this directly bears on not only the viability of our democracy but the rule of law. But before we dive into the solutions, I guess I want to talk a little bit about the problem first.
So my first question is, is there a problem? I mean, i think there’s a huge problem, but am I misperceiving anything there or are things getting worse when it comes to acts of domestic political violence?
Brian Michael Jenkins: No. There is a serious problem. However, let’s try to disaggregate it a little bit and look at its component parts. In terms of total number of deaths, we’re not seeing the kind of high body count that we saw of course on 9/11 and in fact according to a recent report by the Government Accountability Office, the GAO, their estimate is that between 2010, 2021, 155 people were killed by domestic right-wing extremists in this country.
There are a handful of casualties caused by left-wing extremism, but left-wing extremists in the United States tend to be less lethal than the far right.
Jon Amarilio: Yeah, they’re not armed.
Brian Michael Jenkins: And they blow up things rather than to try to kill people whereas the right-wing extremists have these genocidal fantasies and may be involved in mass shootings or in the case of Oklahoma City in 1995, you know, a mass murderer with a bomb. Now, 155 of course, is every single death is tragic and I don’t want to sound callous about this. But during that same period of time, 200,000 Americans were the victims of ordinary homicide in the United States. So, we’re talking about the political violence component of that being something like 1/10 of 1%.
Jon Amarilio: So why do you think it takes up so much oxygen in the public discourse?
Brian Michael Jenkins: It is in part, there is a conflation of the homicide rate, the mass shootings and the political violence, and people don’t make distinctions between those as different categories. They see this as evidence of a very violent society and America is historically a very violent society. The second part of that though is a legitimate concern because there I think a sense of foreboding, not what we’re seeing now, but where is this going?
Jon Amarilio: Right.
Brian Michael Jenkins: I mean, 43% of the American people according to the latest polling data believe that there will be a civil war in this country within 10 years.
Jon Amarilio: I’m glad you took it there. Have we been here before at an inflection point like this? I mean, putting aside the U.S. Civil War, which I think, you know, is the obvious one. I am thinking of like, the anarchist movement in the late 19th and early 20th century, the KKK, and the, you know, during reconstruction, all the way probably through the middle of the 20th century, left, you know, for being non-partisan about it, leftist movements in the 60s and 70s. Is this different?
Brian Michael Jenkins: It is different in one sense but you make a good point here and that is, these things have happened before in our history. There probably isn’t a major social or political movement in the last 150 years that has not been accompanied by a violent edge. So if you go back to the last decades of the 19th century and the first decades of the 20th century, the U.S. labor movement. Of course, where the dynamite conspiracy.
Jon Amarilio: The Haymarket Riot.
Brian Michael Jenkins: The Haymarket, you know, bombings and things of this sort. And again, if you look at the civil rights movement, on both sides in that, there were acts of violence and the 1960s was, you know, one of the most recent most turbulent decades. We saw assassinations, riots in cities and a tremendous amount of political turmoil. Clearly, opposition to the Vietnam War, which was a mass movement, you know, spawned off on its extremist fringes. Groups like The Weather Underground and others that were dedicated to bombing campaign. So, that part is again, not new. We have been there before.
Jon Amarilio: Yeah.
Brian Michael Jenkins: And that gives us some hope that we will again, because of our high tolerance for violence in American society and because of the resilience of our institutions, we will get through it.
Jon Amarilio: Yeah. I mean it’s encouraging, but lately, those examples that you’re listing off, like it occurs to me as you’re saying them that they had very limited political objectives, right? Anti-war movement and the war. Okay? No more need for an anti-war movement there. Civil Rights Movement. You know, the outer edges of that passed the Civil Rights Act, you know, implement other similar reforms, take some of the edge off that. The right-wing extremists that we’re dealing with now, they have broader ambitions, don’t they?
Brian Michael Jenkins: You’re absolutely right again and it’s a good question because in those cases, people were seeking changes in policy.
Jon Amarilio: Yeah.
Brian Michael Jenkins: And therefore, the political system which does have an enormous co-optive capacity was able in a sense to address the issues and co-op the potential constituency of the extremists.
Jon Amarilio: Right, that’s the perfect way to put it. Yeah.
Brian Michael Jenkins: And whereas now, if we’re talking about, you know, the extreme right in the United States today is it’s not a monolithic, you know organization. I mean, it’s an assemblage of attitudes and groups. And it’s everything from, you know, white supremacist and Christian identity, anti-Semitism, anti-Muslim, anti-immigrant, anti-feminist, misogynist.
All of these coalescing in sort of a notion of anti-federal government because it’s the federal government that in a sense is seen as the Avatar of these various causes. And it’s not a matter of changing a policy and in the eyes of these people, they see themselves as facing marginalization is basing even replacement, extinction. And therefore this is about taking power.
Jon Amarilio: Yeah.
Brian Michael Jenkins: Holding power.
Jon Amarilio: They see it as an existential threat to their abdominis(ph)
Brian Michael Jenkins: And that is hard to –you know, you can’t compromise with hatred. Now, however, I don’t want to–
Jon Amarilio: We could substitute some nouns and pronouns there and we’d be describing that Nazi movement in Germany in the 1930s. I don’t want to necessarily go there. I realized that’s inflammatory, but–
Brian Michael Jenkins: Right. And no, I’m not going to go there either but I also however don’t want to toss the idea of addressing underlying grievances because look, these currents of white nationalism, of anti-Semitism, these are continuing dark currents in American history. And that current widens or narrows depending on economic conditions, other stresses in society and it’s wide right now unquestionably. But in part, that is driven by some underlying legitimate economic grievances. Look, as a consequence of automation, as a consequence of globalization, we have destroyed a lot of jobs in this country and people who with school diplomas, were still able to find decent paying jobs. That’s no longer the case. And even young people coming out of college today face a gig economy with few prospects and with AI coming along, we’re about to carve out another big portion of the labor force.
Jon Amarilio: Yeah, including lawyers from what I’ve been reading.
Brian Michael Jenkins: But, you know, people faced with economic hardship, people who cannot earn enough money to have a family or to support a family, people are put in that type of a situation and completely marginalized are not surprisingly angry people.
Jon Amarilio: Yeah.
Brian Michael Jenkins: And that is the potential constituency of the extremists who would recruit them into these more, more dangerous attitudes and groupings. And so part of the — and when we think about this, we have to think about, well, how do we isolate the truly dangerous violent people from their potential constituency without turning half of the country into enemies of the state.
Jon Amarilio: I mean, that’s the big question, isn’t it?
Brian Michael Jenkins: No, that is a huge challenge.
Jon Amarilio: I mean, can we even do that in an era of hyper-partisan TV news and things like that where people are just going to their own preferred channel, network, news source, whatever you want to call it and just getting nothing but confirmation bias and being part of a feedback loop? So how do you get through to people?
Brian Michael Jenkins: That is a new element in the environment that did not exist previously.
Jon Amarilio: At least agreed on some facts before, basic facts.
Brian Michael Jenkins: You know, we, in our media saturated age, we are continuously pummeled by 24/7 cable news by radio talk shows, by the Internet, by social media, which is constantly in a sense intensifying our differences.
Jon Amarilio: Yeah.
Brian Michael Jenkins: Determined to provoke outrage and–
Jon Amarilio: Make money. That’s how they make money. Getting people angry and resentful and airing their grievances.
Brian Michael Jenkins: Those translate into clicks.
Jon Amarilio: Right.
Brian Michael Jenkins: Clicks translate into money.
Jon Amarilio: Right.
Brian Michael Jenkins: So that is a new component and we really haven’t figured out yet how to address that. I mean, people want to do so but you know —
Jon Amarilio: Defamation lawsuits.
Brian Michael Jenkins: You know, we have, yes but it’s extremely difficult to do so and the other problem is then as this violent edge, in a sense, becomes legitimized–
–and moves toward becoming a much broader movement, there is no bright shining line between the groups who are bellicose in their rhetoric or making threats between the politicians. in some cases with a wink and a nod are supporting this thuggish behavior–
Jon Amarilio: Or a raised fist.
Brian Michael Jenkins: You know, or at the other end of it, you know, the malleable individual isolated on his own, his or her, but it’s mainly his own, who then is a consumer of this and really, that’s where the real danger of the violent behavior comes. It comes not from the mass groups. If they became a bomb maker, they would be easier to deal with, but it comes from the fringes and we see it in the mass shootings. You know, I mentioned that 155 people were killed. Half of those were killed in seven mass shootings.
Jon Amarilio: Wow.
Brian Michael Jenkins: El Paso, Texas, you know, name it. Other places and you can see that. Now I don’t want to get into the whole issue of the Second Amendment debate, but into that kind of a fragile and fraught environment, if you pour a massive quantity of weapons, we’re going to have a fairly high level of violence and at the same time, our society is having difficulties for a variety of reasons in just basically enforcing the law. Now, to go back to history. I mean, the good news in history is you can always find worse things that happened long ago. You know, our murder rate in America precedes the creation of the Republic and in fact, the homicide rate in in America before the Republic, was 20 times or more the homicide rate today.
Jon Amarilio: Okay. And I know that.
Brian Michael Jenkins: And the reason for that is in part, harsh frontier conditions.
Jon Amarilio: Sure.
Brian Michael Jenkins: But it was also economic desperation, lack of government — weak government that didn’t have the capacity to enforce the law.
Jon Amarilio: Yeah.
Brian Michael Jenkins: Very little sense of community, and in a sense by looking at that we say, “Look, what drove violence, then drives it today.” This is not rocket science here.
Jon Amarilio: Yeah. Yeah, history may not be repeating, but it’s rhymey.
Brian Michael Jenkins: Right. Right. And so we have to — and the same going back to how one addresses this, you have to both in very forceful manner, deal with those who are carrying out contemplating — plotting acts of violence. Those are the guardrails.
Jon Amarilio: Yeah.
Brian Michael Jenkins: And they have to be enforced. But you have to separate that, the enforcement of the law from the concurrent bitter political differences that are affecting the country.
Jon Amarilio: That’s a perfect place to take a break. We’ll be right back.
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Jon Amarilio: And we’re back. Brian, we left off and you were discussing the need to separate the politics from the violence. That brings a few things to mind. One of them is the language that we’re using during this conversation. As I understand it, you really like labeling this as domestic political violence, not domestic terrorism. Does that go to what you were talking about separating the politics from the violence?
Brian Michael Jenkins: That certainly is part of terrorism. We tried very carefully in the 1970s when terrorism — when we’re looking at international terrorism. In order to elicit International cooperation, we needed to agree upon a definition of terrorism. And so a great deal of effort was expended on deriving very precise definitions. However, terrorism was then and remains today a highly emotive term, a provocative term. It carries a lot of baggage with it and therefore, I don’t think it’s a particularly useful term. Now, the other problem is that in our criminal code, we don’t have a standalone crime of terrorism.
Jon Amarilio: No, It’s an add-on.
Brian Michael Jenkins: It’s an enhancement. So if one is convicted of an ordinary crime, but if it’s in the furtherance of political goals, aimed at affecting government policy, then if one is convicted, one is in a higher sentencing category. But then we have separate from that hate crimes, which is another enhancement. This has caused some people to say, “Well, why don’t we have domestic terrorism law that would match our terrorism law for dealing with foreign terrorist organizations —
Jonathan Amarilio: Which for all the criticism it’s received has been remarkably successful since 9/11 at stopping attacks.
Brian Michael Jenkins: It has been effective, and certainly, what they’re really talking about is the material support provision that was part of the Patriot Act and that basically said that anyone who provides support to a designated foreign terrorist organization is guilty of a crime. And the courts have really decided to define material assistance very broadly. So why don’t we have one of those domestically? And part of the problem is —
Jonathan Amarilio: Yeah. Just to rephrase the question, why don’t we treat these actors domestically the way we treat foreign terrorists?
Brian Michael Jenkins: Right. So the issue in order to get that law, we would have to designate domestic terrorist organizations.
Jonathan Amarilio: And there is the rub.
Brian Michael Jenkins: There is indeed the rub. You can imagine in today’s divided Congress getting members of Congress to agree upon who are the terrorists. We’d either end up with about a thousand organizations and in many cases these aren’t even organizations. These are movements and attitudes.
Jonathan Amarilio: Sure. Like Antifa.
Brian Michael Jenkins: Constellations, not groups. Or even worse, we would get into an issue of political horse trading. You give me Proud Boys, I’ll give you Antifa, or something like that. I think it would be a complete distraction. Moreover, it politicizes the prosecutions. Now, when I refer to this generically as domestic political violence, my view is that focus on the crime, not on the cause. Don’t get trapped in a discussion of motivations.
Jonathan Amarilio: And that’s one of your solutions to this problem.
Brian Michael Jenkins: That is an important point, depoliticize the prosecutions, this is kidnapping, this is a plot to kidnap, this is an attempted murder, this is an assault, and that’s the way we’re going to go with it.
Now, prosecutors are very pragmatic people and already in the courts in dealing with these cases. They don’t often seek to apply the enhancement, the terrorism enhancement, because it’s going to complicate things.
Even if we go back to the Oklahoma City bombing, was it an act of terrorism? Certainly, it was. Did anybody think about trying it that way? No. Timothy McVeigh was charged, convicted and executed for killing eight federal officers in the building. Now, 168 people were killed, but killing eight federal officers carried the death penalty, which is what the prosecutors sought. Had that somehow failed, there was a backup charge in State Court of 168 counts of murder. And it’s just a lesson, be practical here, keep it in the realm of crime. To the extent that you move it into the realm of motivations and causes, the more likely it will go to trial and all it takes is one member of the jury —
Jonathan Amarilio: One jury who’s hiding his or her actual views.
Brian Michael Jenkins: And you’ve got a hung jury.
Jonathan Amarilio: Merrick Garland, the Attorney General has been catching a lot of flak lately for perceived in some quarters or perceived undercharging of the January 6 rioters.
Do you view his approach as following your advice in this regard? I mean, he grew up with the Oklahoma City bombings, right? That was like how he made his name.
Brian Michael Jenkins: Yes. No, he’s experienced in this. He’s been around the block a few times on this and that’s fortunate at this time. Again, January 6 had such an impact that there is a tendency, an understandable tendency of people saying, “We want to throw the book at them” and —
Jonathan Amarilio: Make examples out of them.
Brian Michael Jenkins: Right. But I think in this particular case a kind of a calm, resolute approach was best. I mean, number one, the idea was not to create martyrs. Let’s not create people who are perceived by many people in this country as political prisoners. And so working through the large numbers, I think coming in with charges, and in fact, being open to plea deals where these things could be resolved fairly quickly rather than make this a protracted national crisis also made sense. Some others were those who — it could be demonstrated harmed people, caused physical injury, were given stiffer sentences. They dug in their heels on those, and then what was interesting and I thought this was in fact a bold move —
Jonathan Amarilio: Seditious conspiracy.
Brian Michael Jenkins: Seditious conspiracy charge. We haven’t had a good record in this country of charging people with seditious conspiracy. Yes, we did it when they were people involved in a conspiracy to blow up more targets in New York after the World Trade Center bombing.
Jonathan Amarilio: Yeah, Aaron Burr got off.
Brian Michael Jenkins: You know, but in others that was a gamble in a sense and it was successful. They did successfully, not against every single individual charged, but a sufficient number that that is going to cause — is really going to harm the organizations.
So I think in a sense it was a more discriminating approach. This one we’re not going to bother with, you know it, and yeah, we don’t need custodial sentences on this. And at the other end, some of these people really were planning on assaulting the United States political process and those were going to go after.
Jonathan Amarilio: Okay. So with the exception of those, it seems to be a pillar of your pragmatic approach to addressing this problem is treating it as a crime rather than, I’ll just say, political crime, as shorthand. What are some of the other solutions?
Brian Michael Jenkins: Other solutions, I say, let me come back to the point I made earlier and simply say that let’s not give up the idea of co-option. There are some — we can address the grievances, we can go after the constituency. So that’s another one.
Jonathan Amarilio: So that’s improving economic conditions, wages, that kind of thing.
Brian Michael Jenkins: In legitimate ways we can do so. I think we do have to address, and I don’t have good solutions here, but we do have to address the change in the technological environment and how that has had some effect on the laws. I think the law on incitement is probably something that we would like to revisit, not so much law, but how Case Law has interpreted that and made it extremely difficult.
Jonathan Amarilio: Let’s dig into that a little bit. What do you mean by that?
Brian Michael Jenkins: Okay. Incitement. I mean, incitement is basically, I am going to persuade someone else to carry out a crime. I’m going to instigate a crime. And when that law was first created, it was fairly straightforward. You get together in communications, I want you to go shoot that person, and it is fairly straightforward. What the courts have done over time is to — in a sense, raise the barn to say, well, the communication one, it has to be a very direct communication. It has to be in anticipation that your audience, your intended recipient of that message, will in fact do it imminently. Otherwise, it’s advocacy. I mean, if say, you know, I think these are damn fools in Washington, we ought to get rid of them. That’s not incitement.
Jonathan Amarilio: So now if you’re the prosecutor, you’ve got to try to get inside and prove that person’s mental state, which is incredibly difficult.
Brian Michael Jenkins: And you have to, then on the other side, show that the recipient of the message acted because that was the message they received and their motivations for doing so.
Jonathan Amarilio: This is the whole debate about what happened on January 6.
Brian Michael Jenkins: Right. And that is tough. I would say, getting into an incitement charge, given the current interpretation, that’s difficult. The law does not take into account a couple of things. Number one, the source of the message. If a high-ranking important official or somebody who already is recognized as an influencer with millions of followers, is saying that that has different weight than —
Jonathan Amarilio: Right. They know the power of their statements.
Brian Michael Jenkins: Yeah, the power of the statements, and then second, the ability to reach an audience of millions. Now we’re not talking about a couple of people getting together in a tavern to plot a crime.
Jonathan Amarilio: So that’s a good point, because you could say it to, let’s say you have an audience of a million people, and you know, all I need is one or two of them to hear me a certain way, and they’ll do what I want, and that gives them a hedge and a defense.
Brian Michael Jenkins: That’s right. And so, how do we address that in a way that recognizes the powers of these technologies, the powers of communication, and yet at the same time preserves that vital free speech.
Jonathan Amarilio: Yeah. So what’s the answer?
Brian Michael Jenkins: I don’t have one.
Jonathan Amarilio: Come on.
Brian Michael Jenkins: I’m not a legal scholar, and one of the reasons I enjoy speaking to groups like the Chicago Bar Association or others is to, in a sense, be a provocateur and put that question in front of them and say, “Okay, how do we do this?”
Jonathan Amarilio: Yeah. Start the conversation.
Brian Michael Jenkins: And another area, and again, this goes back to Internet, and it sounds like I’m an opponent of the First Amendment, which I clearly am not. But the issue of anonymity and complete encourages what we’re seeing as an increasing problem today. The volume of threats against public officials all the way from poll workers and school board members on up to the Senate and Federal judges, are today faced with a volume of the most vile threats. They have to worry about their own security. They have to worry about the security of their families. And as a consequence of this, not only are an enormous amount of resources being devoted to this growing problem, but a number of dedicated public servants are simply saying, this life is untenable, and they’re understandably getting out. But then who does that leave to operate our government? Those who are completely comfortable with a more thuggish behavior. It corrodes our democracy. It changes the complexion of our political class.
Jonathan Amarilio: Yeah. And you were talking about the origins of the First Amendment before. It seems to me that when the founders were drafting it, it was an age where if you wanted to be heard, you stood on a soapbox in the middle of the Town Square, and everyone knew who you were, and you had to take responsibility for what you said. Anonymity people are much more willing to be, I don’t know if “brave” is the right word or “bold”, “reckless” with their speech.
Brian Michael Jenkins: Free speech could come out of your mouth, but there was a nose to be punched. And so, again, I’m not assaulting the Constitution here, and that has to be understood. And I don’t have —
Jonathan Amarilio: But this is a spectrum.
Brian Michael Jenkins: And I also agree that there has to be a tension on this. I mean, people say, “Well, we can’t resolve this. There’s tension.” And the answer is, you’re damn right there’s tension. And that’s a democracy, and that tension should be there. We should be arguing this constantly. And that’s the other innocence thing that I think is a challenge to us in dealing with our current circumstances. Let’s not try to have any illusion that we are going to resolve our political differences. Let’s be careful, number one, of an overreaction and let’s be equally careful of overreach. Law enforcement can provide the guardrails for behavior. It can deal with violent offenders —
Jonathan Amarilio: By treating the actions as crimes.
Brian Michael Jenkins: Yes. It cannot strip mine every seam of bigotry from American society.
Jonathan Amarilio: Right.
Brian Michael Jenkins: It is the wrong instrument to achieve fundamental changes in attitudes. It cannot become a crusade for tolerance. I’m not saying those aren’t goals, but those are national goals that require a national discussion from the citizen to the Oval Office. That’s something we’re all involved in. So part of the pragmatic strategy is, yes, the enforcement of the law isn’t essential but by itself insufficient solution. And we really do as a society, if we’re going to stay together as a society, have to learn how to, number one, accept differences, but at the same time be able to govern a people who historically are not easy to govern.
Jonathan Amarilio: Yeah, we’re a fractious, cantankerous bunch. We had dinner last night and something you said really stuck with me. We were talking about the political divide and you were talking about Russian intelligence efforts and what the Russians do with American social media to American consumers, how they don’t make up controversies and issues, but they amplify them. And I thought that was enlightening and made me pause and think about some of my own thoughts and predilections and where they may have been coming from. Can you explain that to our audience a little bit?
Brian Michael Jenkins: Well, look, many, many years ago, in the years after the Russian Revolution, the Russians conducted propaganda operations. Information operations influence it and they were good at it, but there was an ideological component to it. Today it is different. What the Russian influence operations look for are issues that divide us. Any contention —
Jonathan Amarilio: Preexisting issues.
Brian Michael Jenkins: Preexisting.
Jonathan Amarilio: They’re not making up.
Brian Michael Jenkins: They don’t create them. They exacerbate the difference. They deepen the divides. And what they do is they watch what’s happening. They will select messages that this is locally produced, made in the USA content that they will then pick the extremes of that on both sides and through their bots and through their influence operations, they will amplify the extremes of the argument. So it is not that they are creating the differences but they are amplifying the extremes and pulling us apart. And it is part of a strategy basically that it will weaken us. I mean, and this is not just taking place in America. It’s taking place across the world.
You look at some of the countries, Russian finance, political parties are far right parties in many places in Eastern Europe. And it doesn’t make any difference. If you can have those on the far right and you crank those up and support those financially and with information operations and those on the other side and you do the same thing, then you’ve created a system that is at war with itself, and it’s weakened because of that very fact.
Jonathan Amarilio: Okay, we’re running out of time. I want to end this on some kind of high note so that people don’t walk away completely depressed from this interview. Where are we going with all this?
Brian Michael Jenkins: Again, look, I tell people I was born in Chicago, and my father and I remain lifelong Cubs fans and Bears fans and so that —
Jonathan Amarilio: Cubs got one in a few years, you know?
Brian Michael Jenkins: Yeah, and so that it I suppose explains part of my optimism and hope. But honestly, I do think that it’s not necessarily going to be a matter of statutes. It’s not going to be a matter of in every case of a prosecution or not. It really involves all of us, and it requires courage and with calm resolve and with common sense and with the realization that this is going to take a long time, that we are still very much a work in progress. We can get through this. We have been through dark moments in our history.
As I say, we have a high tolerance for violence, which is both, unfortunate, but good from the standpoint of resilience. And if we can maintain the trust in our institutions and in each other, we will survive.
And being an older guy, I have to tell you, that’s about as good as it gets.
Jonathan Amarilio: Amen. We’ll be right back with Stranger and Legal Fiction.
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Jonathan Amarilio: And we’re back with Stranger and Legal Fiction. Our audience knows the rules. I’ve done some research, found one strange and real law that’s on the book somewhere in the United States. I’ve made another one up. I’m going to quiz Brian to see if he can distinguish strange legal fact from fiction. Brian, are you ready to play?
Brian Michael Jenkins: Ready to go.
Jonathan Amarilio: All right, two possibilities. Option number one, in Destin, Florida, local ordinance provides a legal definition for bad roosters, bad dogs and bad cats and makes owning such baddies a civil infraction punishable by up to $100. That’s option number one. Bad roosters, bad dogs, bad cats defined by statute.
Option number two. In Toledo, Ohio, it is illegal to make faces at any kind of dog that is either not owned by you or by a member of your household. No making faces at a stranger or neighbor’s dog, which is real, which one is fake?
Brian Michael Jenkins: Oh boy, it’s amazing what politicians do to pass laws. This is nothing more than a guess. I’m going to say the Florida law on bad roosters is the real one.
Jonathan Amarilio: Then you’d be right. What gave it away?
Brian Michael Jenkins: I can actually imagine a situation where certain kinds of animals could be regarded as a nuisance, disturbing and lead to fines. I have a harder time imagining making faces at dogs.
Jonathan Amarilio: Okay. So, yes, I completely agree. And it turns out I looked it up, the bad dog, bad roosters. I don’t know. Roosters seem random. Bad cats. It all just basically came down to whether they’d bit someone before. Okay, that makes sense. It’s weird that they define it that way, but okay.
The Ohio law I saw repeated throughout the Internet as a real law in both Ohio and Oklahoma, repeated hundreds of times on law firm websites that were trying to drive clicks. I could not find it. I went into the statutes, I could not find it anywhere. So talk about this information. That’s an example of that right there.
Brian Michael Jenkins: It certainly is.
Jonathan Amarilio: But that is going to be our show for today. A very big thank you to our guests, Brian Michael Jenkins, not only for a stimulating and informative conversation, but for all the good work you’re doing, sir, trying to tamp down these fires that are increasingly defining our country’s political discourse.
Brian Michael Jenkins: Thank you very much.
Jonathan Amarilio: I know I speak for everyone in our audience when I say that I hope you succeed and that decision-makers in Washington, every town, city and state capital in the country listen to what you have to say. I also want to give a special thank you to CBA president Tim Tomasik of Tomasik Kotin Kasserman. Tim flew Brian here for the interview and a special program that we’re having at the CBA later today. And as that kind of effort indicates, Tim has been the transformative and yet also restorative president that the CBA needed coming out of the pandemic. He’s a great bar leader and we’ve been very lucky to have him at the head of the CBA this last year.
As always, thanks to our Executive Producer, Jen Byrne, Adam Lockwood and Ricardo Isles on sound and everyone at the Legal Talk Network family. Remember, you can follow us and send us comments, questions, episode ideas, or just troll us on Facebook, Instagram and Twitter at cba@thebar. You can also email us at [email protected].
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Kate Nutting: Thank you for tuning in. We hope you enjoyed it. Once again, you can check out more episodes of @theBar and Lawyer 2 Lawyer on the Legal Talk Network site or wherever you find podcasts. We will return with Craig in our next Lawyer 2 Lawyer episode.
I’m Kate Nutting. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.