THE ANTI-KLAN ACT IN THE TWENTY-FIRST CENTURY

Racial terrorism by organized hate groups and lone wolf vigilantes presents a growing societal danger. Increasingly, the planning and recruitment for such plots occur through online communications channels. This Essay sheds new light upon how little-known federal civil rights statutes originally enacted following the Civil War can be applied to the use of online platforms in planning and discussing racially motivated attacks. The Ku Klux Klan Act of 1871 gave rise to 42 U.S.C. 1985 and 1986, still in effect today. Section 1985 provides a federal civil cause of action against persons who conspire to deprive a person of federally protected civil rights. Section 1986, which is the focus of this Essay, provides a cause of action against persons who are aware of a 1985 conspiracy yet fail to act to prevent it from being carried into action. This Essay first reviews the background, text, and legislative history of 1985 and 1986. The Essay next draws upon sociological research illuminating the nature of the contemporary white-supremacist movement and the manner in which white supremacists utilize online communications platforms, which make it difficult for outsiders to become aware of and to disrupt conspiracies before they come to fruition. This Essay then discusses how 1986 can be used as a tool to incentivize insiders and bystanders who are part of online networks where such plots are discussed to report and disrupt them before they manifest, drawing upon the law and psychology literature regarding bystander motivations and behavior. Finally, the Essay discusses potential First Amendment compelled speech challenges to 1986 suits. This Essay concludes that 1986 can and should be utilized more widely to combat white-supremacist terrorism.

Automated summary

This Essay sheds light on the importance of applying federal civil rights statutes to the planning and discussion of racially motivated attacks on online platforms. The 1871 Ku Klux Klan Act gave rise to Section 1985 and 1986, which provide protection against conspiracies and inaction. Drawing upon sociological research and psychological literature, this Essay argues that Section 1986 can be used more extensively to combat white-supremacist terrorism. Potential First Amendment compelled speech challenges to Section 1986 suits are also discussed.