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Abstract

Veterans and active-duty members of the armed forces are popular and vulnerable targets for recruitment by alt-right and violent white extremist (“VWE”) groups. As the United States government attempts to deal with an influx of violent hate groups throughout the country, both in the civilian and military context, it must respect the civil liberties of those investigated. This is critical because prosecutors often sweep with a broad brush when investigating resistance movements, and protestors of color and from marginalized backgrounds are disproportionately targeted. Further, on a constitutional level, every American has fundamental rights that cannot be abridged. Therefore, when dealing with active duty servicemembers and recruitment by violent white extremist groups, military courts must remain mindful and respectful of servicemembers’ First Amendment rights. Prosecutors must find ways to separate extremist conduct—which can and should be punished—from extremist ideologies, words, and thoughts, which, on their own, cannot and should not.

This Article first provides a brief overview of the characteristics of alt-right and VWE groups, including a history of the white supremacist movement in the United States and the current landscape in which these groups operate. It then explores the tactics that alt-right and VWE groups utilize to recruit U.S. servicemembers and reviews current First Amendment doctrine that traditionally limits law enforcement’s ability to police VWE speech both online and in person, making it difficult to prevent this type of recruitment. Finally, after examining the relevant cases in military courts that demonstrate the different standards for servicemembers’ speech, this Article proposes a new specific, speech-integral crime of recruitment for extremist organizations. This proposed crime, in the vein of other speech-integral crimes like solicitation, extortion, and perjury, is designed to preserve servicemembers’ First Amendment rights when adjudicating cases in this space.

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