Question for the Court: When Does Free Speech Become Aid to Terrorists?

By Kristen Friend, staff U.S. Supreme Court writer – March 2, 2010

A challenge to a US anti-terror law raises the issue of whether political speech may be prosecuted as support for a terrorist organization.

The Supreme Court heard oral arguments in the case, Holder v. Humanitarian Law Project, last Tuesday

and is currently deliberating the issue. The question at hand is a clause of a 1996 law, 18 U.S.C. § 2339B, also subsequently included in the PATRIOT Act, which prohibits the “material support” of groups designated by the Secretary of State as terrorist organizations. [1]

While the phrase “material support” sounds as though it refers to concrete items, it is actually not limited to commodities such as weapons, ammunition or money, but also includes less clear cut items like “training,” “personnel,” “service” and “expert advice or assistance.” [2]

The case originated in 1998, with an additional complaint filed in 2003, when a group of peace activists sued for the right to provide support for the lawful and humanitarian activities of two groups, the PKK, a Kurdish political group and the Tamil Tigers, a group advocating for the self-determination of the Tamils in Sri Lanka. Both of the groups in question have been designated as terrorist organizations. [1]

Arguing for the prosecution, attorney and Georgetown Law Professor, David Cole claimed that the material support clause is unconstitutionally vague and violates his clients’ guaranteed rights to free speech and association as provided by the First Amendment. According to Cole, the statute would cause individuals to be prosecuted and potentially imprisoned for supporting and participating in lawful activities.

In turn, US Solicitor General Elena Kagan argued that the law is “vital weapon” [3] in the government’s efforts to combat terrorism.

The case brings to light the delicate balance between the need to safeguard long-established First Amendment freedoms and the ability of the US government to protect the nation’s security. The battle between those that believe some rights can be subverted by the need for security and those that believe certain rights are immutable has been raging for over a century from Lincoln’s suspension of habeas corpus during the Civil War to McCarthyism and the Second Red Scare to more current disputes over warrantless wiretapping and provisions of the PATRIOT Act. Mr. Cole contends that in this case the government should not hold individuals liable for speech that intends only to promote peaceful, legal activities and should instead focus on prosecuting conduct that aids violent and illegal actions.

According to Solicitor General Kagen, the material support law rests on the assumption that any aid to a terrorist group, whether for peaceful endeavors or not, ultimately helps the group pursue violent activities. “Hezbollah builds bombs,” Kagan said. “Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs.” [4]

The Justices, however, did not seem to agree that the issue is so clear-cut. During wide ranging questioning, discussions included a variety of real and hypothetical items, including working in Nazi hospitals, support for the Communist party, travel to Cuba and harmonica. At times questioning intended to clarify issues seemed only to make them murkier. At one point in the discussions, Chief Justice Roberts stated, “I am just trying to find an example that doesn’t implicate the particulars of the issue today… my hypothetical was confusing.” [4]

Justice Kennedy admitted that he could see a governmental interest in prohibiting support of any kind to a designated group, since any support “will ultimately inure to the benefit of a terrorist organization.” Kennedy, a strong supporter of First Amendment rights admitted, “This is a difficult case for me.” [5]

Mr. Cole responded by arguing that there must be a more concrete link between the speech and the illegal actions of the group. Any advice or advocacy cannot be said to automatically aid in illegal activities. He conceded that the Court has upheld in prior cases that conduct (i.e. travel to Cuba) or monetary contributions can be regulated, but reasserted that the issue at hand is speech. And, because of the strong First Amendment protection given to speech, it must meet a higher standard of scrutiny, or a “specific intent standard.” [4]

Continuing with a hypothetical, Cole posited that under a broad reading of the statute, perhaps the New York Times could be prosecuted for publishing an editorial written by a Hamas leader. When challenged by Justices Kennedy and Scalia that publishing an editorial is different than meeting with a group, Cole argued that there is no such distinction. “It’s about whether you coordinate with them,” he said. “And they’ve [The New York Times] certainly coordinated with the Hamas spokesperson in editing and accepting and then publishing his editorial.” [4]

In attempting to clarify where the line is drawn between legal and illegal speech and association, Ms. Kagan said that individuals could advocate any position as long as the advocacy is done independently of the group in question. A person may even join the group and have discussions with other members of the group. However, once any discussions turn to “advice” the speech becomes prosecutable.

Justice Ginsburg questioned this statement, saying, “So you can communicate, but the communications are censored? You can be a member, you can attend meetings, you can discuss things, but there is a certain point at which the discussion must stop, right?” [5]

Ms. Kagan agreed, giving the example of a lawyer filing a friend-of-the-court brief on behalf of a terrorist group. That action, she claimed, would be subject to prosecution.

Justice Sotomayor added a touch of levity to the discussion, suggesting that it may be illegal to give harmonica lessons to a member of a terrorist group since such activity could be considered “specialized training.”

The material support clause existed for many years as a relatively obscure provision of the law. However, it has been used with increased frequency since the terrorist attacks of September 11, 2001. Opponents of the law argue that has been used in several terrorism cases as a last resort, a catchall for prosecutions that otherwise have thin evidence. [6]

In 1998, Judge Collins, of the federal district court in Los Angeles, found the material support clause to be unconstitutionally vague. Subsequently, in 2000, the federal Court of Appeals for the Ninth Circuit affirmed the decision and Judge Collins issued a final injunction in 2001. [7] A decision is expected from the Supreme Court on the issue in June.

Sources:

1. http://ccrjustice.org/holder-v-humanitarian-law-project, Center for Constitutional Rights

2. http://www.law.cornell.edu/uscode/18/usc_sec_18_00002339—B000-.html, Cornell University Law School Legal Information Institute

3. http://www.csmonitor.com/USA/Justice/2010/0223/Supreme-Court-Peace-activists-challenge-US-antiterror-law, The Christian Science Monitor

4. http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1498.pdf, Oral Arguments Before the Court, Feb 23, 2010

5. http://www.nytimes.com/2010/02/24/us/24scotus.html, The New York Times

6. http://www.huffingtonpost.com/shayana-kadidal/today-at-the-supreme-cour_b_472619.html, The Huffington Post

7. http://www.ccrjustice.org/hlp, Center for Constitutional Rights

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