Viral social media posts and videos have falsely claimed that “martial law [is] imminent” in the U.S. Those bogus reports are being pushed in some cases by those who sell emergency and survivalist products.
President Donald Trump mobilized the National Guard on March 22 in Washington, California and New York — three states that have been hit hard by COVID-19 — to assist with everything from distribution of food to set-up of medical tents.
The following day, Defense Secretary Mark Esper clarified: “To be clear, this is not a move toward martial law, as some have erroneously claimed.”
Esper was responding to persistent online rumors that martial law is either currently in place or very near.
Generally, martial law is military authority substituted for civil government during periods of unrest. It’s a murky concept that hasn’t been defined in American law — as we’ll explain later.
As for the rumors hyping the idea that military rule is looming, the Facebook page for “Alternative Media Television” recently warned its more than 145,000 followers: “STORM IS COMING TO AMERICA!!!! MARTIAL LAW NEXT 24 HOURS!!!!!!”
That post linked to Alternative Media Television’s online store, which sells “emergency survival” gear and “emergency preparedness” food supplies.
“We are already under overlying fields, crisscrossing fields, of martial law,” Jones said in one recent video.
Jones was banned from Facebook in 2019 for violating the company’s policies on “dangerous individuals and organizations,” but he still maintains a website and posts videos to his own video-sharing platform. The video warning of martial law was viewed more than 100,000 times, according to metrics shown on the site.
But that’s not true.
There has been no declaration of martial law nationally or in any state as of March 25.
In fact, Federal Emergency Management Administrator Peter Gaynor said at a briefing with the president’s coronavirus task force on March 22, “we’ve had a lot of disinformation circulating and I want to make sure that it’s understood that this is not martial law.”
New York Gov. Andrew Cuomo also has said he won’t institute martial law, and the Washington National Guard issued a statement on Twitter saying, “Let’s put aside the rumors about martial law or military rule. IT’S JUST NOT TRUE.”
California Gov. Gavin Newsom said that he didn’t expect martial law would be necessary, but acknowledged that it’s an option.
At a March 15 press briefing, a reporter noted that other states had been more forceful in closing down businesses and asked, “why not exercise your authority?” Newsom answered by saying: “[I]f you want to establish a framework of martial law, which is ultimate authority and enforcement, we have the capacity to do that, but we are not, at this moment, feeling that is a necessity.”
Newsom may have been referring to his powers under the state’s Emergency Services Act. His office didn’t respond to a request for clarification, but a spokesman for the governor’s office, Brian Ferguson, has reportedly said: “We don’t want this to be scary for people. This is a humanitarian mission to support health and safety.”
So, martial law isn’t in effect and it’s not imminent. But it’s worth explaining what, exactly, this ill-defined term means.
The U.S. Supreme court summed it up in a 1946 decision stemming from martial law in Hawaii during World War II.
U.S. Supreme Court, 1946: [T]he term ‘martial law’ carries no precise meaning. The Constitution does not refer to ‘martial law’ at all and no Act of Congress has defined the term. It has been employed in various ways by different people and at different times. By some it has been identified as ‘military law’ limited to members of, and those connected with, the armed forces. Others have said that the term does not imply a system of established rules but denotes simply some kind of day to day expression of a General’s will dictated by what he considers the imperious necessity of the moment… In 1857 the confusion as to the meaning of the phrase was so great that the Attorney General in an official opinion had this to say about it: ‘The Common Law authorities and commentators afford no clue to what martial law, as understood in England, really is. * * * In this country it is still worse.’ 8 Op.Atty.Gen. 365, 367. What was true in 1857 remains true today.
Basically, martial law is the temporary replacement of civil government by the military during a period of unrest, explained David Glazier, a professor at Loyola Law School and former U.S. Navy officer.
Before that, martial law had been declared a couple of times by governors in the early 20th century, Banks and Glazier said. Also, President Abraham Lincoln used it during the Civil War and General Andrew Jackson used it in New Orleans during the War of 1812.
Post World War II, some circumstances have been mischaracterized as martial law, particularly civil rights-era actions, as when President Dwight Eisenhower federalized the National Guard in Arkansas to integrate schools in Little Rock. President John F. Kennedy did the same in Mississippi, and President Lyndon Johnson acted similarly to protect demonstrators marching from Selma to Montgomery in Alabama.
All of those actions were taken under the Insurrection Act, which allows the president to use the military to quell unrest.
But that’s the opposite of martial law, which exists only if there is no civil law. In those cases, “It’s entirely authorized by the law. That’s the point,” said Banks.
Geoffrey Corn, a professor at South Texas College of Law Houston and a former Army officer, put it another way — those cases used the military to supplement civil law.
A much more common supplemental use of the National Guard is for help with humanitarian aid and law enforcement during natural disasters, Corn said.
Still, it can be confusing to the public to see signs of military presence in their communities.
For example, Jonathan Rath Hoffman, a spokesman for the Department of Defense, was recently prompted to respond to a viral tweet showing a video clip of military vehicles that suggested they were an ominous sign of things to come.
“[T]hese are new Joint Light Tactical Vehicles being transported by @USArmy Materiel Command from the factory in Oshkosh to Fort Bragg, NC. These deliveries by train to our bases nationwide are not infrequent and have nothing to do w COVID-19,” Hoffman tweeted.
But another post from Alternative Media Television had already amplified the misconception, claiming: “BREAKING!!! MILITARY VEHICLES MOVING INTO MAJOR CITIES!!! MARTIAL LAW IMMINENT!!” The video accompanying that post has been viewed more than 225,000 times.
In order to have martial law, Corn told us, there would need to be a complete breakdown of civil institutions. “As long as civil function continues,” Corn said, the courts will find “invocation of martial law is unconstitutional.”
The other experts we talked to agreed that national-scale martial law is exceedingly unlikely.
“There’s no case whatsoever that civil authority has collapsed or come close to collapsing,” said Robert Chesney, a professor at the University of Texas at Austin Law School, explaining that there is no cause for instituting the “almost comically draconian step of martial law.”
Trump, Donald. Memorandum on Providing Federal Support for Governors’ Use of the National Guard to Respond to COVID-19. 22 Mar 2020.
Defense Secretary Esper Coronavirus News Conference. C-SPAN. 23 Mar 2020.
U.S. Supreme Court. Duncan v. Kahanamoku. 327 U.S. 304. 25 Feb 1946.
Congressional Research Service. “The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law.” 6 Nov 2018.
Congressional Research Service. “Defense Primer: Legal Authorities for the Use of Military Forces.” 3 Jan 2020.
Glazier, David. Professor, Loyola Law School. Telephone interview with FactCheck.org. 23 Mar 2020.
Banks, William. Professor, Syracuse University. Telephone interview with FactCheck.org. 24 Mar 2020.
Corn, Geoffrey. Professor, South Texas College of Law Houston. Telephone interview with FactCheck.org. 24 Mar 2020.
Chesney, Robert. Professor, University of Texas at Austin Law School. Telephone interview with FactCheck.org. 24 Mar 2020.