The Executive Order
On September 22, 2025, President Trump issued an Executive Order designating Antifa a “domestic terrorist organization.” The Order was part of the administration’s response to Charlie Kirk’s killing. President Trump asserted that the “radical left” was complicit in Kirk’s murder and vowed to “hit” his political opponents on the political left.
The Order proclaims:
Antifa is a militarist, anarchist enterprise that explicitly calls for the overthrow of the United States Government, law enforcement authorities, and our system of law. It uses illegal means to organize and execute a campaign of violence and terrorism nationwide to accomplish these goals.
The Order directs federal agencies to “investigate, disrupt, and dismantle any and all illegal operations” by Antifa.
No Organization and No Federal Law
There are two fundamental problems with the Antifa Order right off the bat:
Antifa is more a diffuse movement or ideology than an organization in the traditional sense (for example, it does not have any designated leaders, membership lists, or financial infrastructure).
Perhaps more importantly, no federal law authorizes the President (or anyone else) to label a domestic group a “domestic terrorist organization.
In a normal presidential administration, these obstacles would likely have prevented any order from issuing from the White House. But as we have seen, President Trump is not deterred by such legal technicalities.
Notwithstanding practical and legal impediments to enforcement of the Antifa Order, it would be a significant mistake to simply shrug it off. The Order, like others Trump has issued, endangers freedom of expression.
First Amendment Concerns
The Antifa Order labels an entire movement “terrorist” and directs federal agencies to use their powers to dismantle and extinguish it. During the 1950s, the federal government’s campaign to root out “radicals” and “hit” alleged communists led to widespread suppression of speech and associational activities. The Supreme Court ultimately repudiated First Amendment precedents and doctrines that allowed the government to target groups and movements based on ideology, including abstract support for violence. As a result, today domestic political organizations and movements enjoy robust First Amendment rights. The Antifa Order threatens those rights.
The Rights of Domestic Organizations and Their Members
As noted, we do not currently have a federal law that authorizes the executive to designate any group a “domestic terrorist organization.” The central reason for that lack of authority relates to preservation of First Amendment rights.
In Holder v. Humanitarian Law Project (2010), the Supreme Court upheld certain speech restrictions as applied to foreign terrorist organizations (FTOs), which can be designated as such under federal law. However, the majority in Holder emphasized that its decision should not be interpreted to allow the federal government to regulate advocacy by domestic organizations.
Although the Court did not explain why it was distinguishing domestic from foreign organizations, several reasons come to mind.
For one thing, the First Amendment clearly applies to domestic organization and their members but not to foreign organizations and their members outside the U.S. Designating a domestic organization or movement “terrorist” brings the First Amendment directly into play. In Holder, American citizens challenged federal law restricting their ability to provide educational and advocacy support to organizations the American government had designated “foreign terrorist organizations.” As noted, the Court upheld the restrictions. But the FTOs and their members do not have First Amendment rights of their own.
Further, laws targeting speech and association by domestic organizations pose significant risks to freedom of speech and association. As stated, the Court worked through some of these problems during the 1950s Red Scare. The government relied on content-based restrictions on speech and association, suppression of the mere abstract advocacy of disfavored ideas and ideologies, and restrictions on the right to associate with a group or movement for lawful purposes. Modern First Amendment doctrines and standards provide robust protections that treat these government actions as presumptively invalid.
Lawful Advocacy, Organization, and Coercion
The Antifa Order directs federal law enforcement agencies to disrupt the unlawful activities of the targeted group. Of course, agencies do not need an Executive Order to engage in enforcement activities of this nature. They have ample power to investigate and punish unlawful conduct, including violent activities, by any group or movement.
The President’s Antifa Order declares a movement on the left and those who support it “terrorist” and directs federal law enforcement agencies to “investigate, disrupt, and dismantle” it. There is a significant risk that the Order will encourage law enforcement agencies, including the Federal Bureau of Investigation, to target lawful protest organizing and participation.
We have seen this movie before - several times, in fact. The FBI has a secret Counterintelligence Program (COINTELPRO), which involved a systematic effort to disrupt, neutralize, and discredit protest activities and activist organizations across the United States. COINTELPRO targeted a wide range of groups, primarily active during the 1950s, 60s, and 70s, which the FBI deemed “subversive”. The FBI’s surveillance of protest groups significantly chilled their speech and associational activities. Similarly, after the September 11 terrorist attacks, the government surveilled Muslim groups and activists.
As a result of these and other enforcement actions lawful protest activity, including protest organizing by several groups, was swept up in federal dragnets. The danger here may be more acute. As noted, Antifa is not a traditional organization. There is a risk that the president’s order may be interpreted in a manner that leads to surveillance and investigation of any purportedly “radical left” organization or movement. Just as “DEI” has been interpreted to cover a wide range of activities and ideas, so too might “Antifa” come to be understood as an umbrella term for political ideas on the left.
If this happens, the FBI may cast a broad net that covers protest movements in general or groups with certain political leanings who the FBI will claim are “associated with” Antifa. This creates a serious risk that groups and individuals will be investigated, and perhaps even prosecuted, based on their ideas or ideologies. It also creates the risk that agencies and prosecutors will apply a “guilt-by-association” principle under which anyone who expresses support for “anti-fascism” is presumed to support any violent activities undertaken in its name.
The details of the Order, such as they are, do not provide much comfort with regard to recognition and respect for First Amendment rights. President Trump at least makes an effort to couch his administration’s concerns by focusing on violence. But given his apparent view that “the left” is itself a violent and terroristic threat, the Order threatens speech.
For example, the President claims Antifa “recruits, trains, and radicalizes young Americans” to engage in violent or unlawful activity. Recruiting members, training them regarding lawful protest activities, and communicating anti-fascist ideas are all protected by the First Amendment. Again, because the administration has adopted the view that anti-fascism is itself a form of violence, or an idea that always leads to violence, we cannot be confident it will distinguish unprotected violence from protected speech and association.
The Order also states:
Individuals associated with and acting on behalf of Antifa further coordinate with other organizations and entities for the purpose of spreading, fomenting, and advancing political violence and suppressing lawful political speech. This organized effort designed to achieve policy objectives by coercion and intimidation is domestic terrorism.
Coordinating with other organizations and entities is protected by the First Amendment, even if it is “for the purpose of spreading, fomenting, and advancing” the idea that political violence is an appropriate means of advancing a cause. As the Supreme Court held in a 1969 decision, Brandenburg v. Ohio, if the group or its members engage in express advocacy of specified acts of violence and those actions are both imminent and likely to occur, the First Amendment does not shield them. But Brandenburg makes clear that the mere abstract advocacy of violence is protected political speech. Many on the political right benefit from this standard, by the way, including those who advocate “hanging” their political enemies and engaging in armed rebellion against a purportedly “tyrannical” government.
Further, the Supreme Court has held that coercive and intimidating expression is protected by the First Amendment. As the Court observed in NAACP v. Claiborne Hardware (1982), “Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.” The government can certainly punish conduct that amounts to "coercion” and “intimidation,” but it cannot restrict speech on these grounds.
Public Protest
The President’s Antifa Order is one of many actions that chill protest organizing and participation. The climate regarding public protest has become increasingly oppressive, in part owing to the Trump Administration’s actions.
In addition to the Antifa Order, President Trump and his administration have:
Dispatched National Guard and U.S. military personnel to respond to political protests in Los Angeles;
Arrested, detained, and subjected to deportation proceedings international students and scholars who participated in campus protests relating to the situation in Gaza;
Insisted, as part of their “negotiations” with universities, that the institutions revise their protest rules to further restrict campus activism, hire campus security personnel and authorize them to make arrests, and crack down on students who violate protest rules; and
Targeted, or threatened to target, funding sources on the left that sometimes contribute resources to public protest events.
None of this should come as a surprise. After all, during his first term as president Trump frequently derided protesters and even reportedly mused about shooting them in the leg to suppress public protests. The President has made abundantly clear that he does not respect and may not even recognize citizens’ rights to engage in lawful and peaceful protests and demonstrations. Indeed, he may not think there are any protests that meet this description.
First Amendment doctrines and standards say otherwise. History has taught us that governmental efforts to target and eradicate disfavored ideas or ideologies are dangerous not only to First Amendment rights but to democracy itself. We can hope that President Trump’s Antifa Order will only be a symbol of his intolerance for dissent and nothing more. But we should be vigilant in the face of any effort by officials to brand political opponents “radical” and use the state’s power to “hit” them.