Monday, June 21, 2010

Terrorism and the First Amendment

Can a person be criminally punished for offering advice to a terrorist group, even if the advice is humanitarian in nature and has nothing to do with terrorism or its advocacy? Would the first amendment protect such speech?


Rejecting a First Amendment challenge, the Supreme Court on Monday upheld a federal law that bars providing “material support” to terrorist organizations.

The decision was the court’s first ruling on the free speech and association rights of American citizens in the context of terrorism since the Sept. 11 attacks.

Chief Justice John G. Roberts Jr., writing for the majority in the 6-to-3 decision, said the law’s prohibition of providing some forms of intangible assistance to groups said by the State Department to engage in terrorism did not violate the First Amendment.

From the Roberts majority opinion (joined by Stevens, Scalia, Kennedy, and Alito):

At bottom, plaintiffs simply disagree with the considered judgment of Congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization. We think a person of ordinary intelligence would understand that independently advocating for a cause is different from providing a service to a group that is advocating for that cause.
He also notes a strong deference to the Executive and Congressional branches as it relates to terrorism:
Given the sensitive interests in national security and foreign affairs at stake, the political branches have adequately substantiated their determination that, to serve the government’s interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ nonviolent ends. We have noted that neither
the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.
True, but in dissent J. Breyer rejects that claim, upon others (joined by Ginsburg and Sotomayor):
I concede that the Government’s expertise in foreign affairs may warrant deference in respect to many matters. But it remains for this Court to decide whether the Government has shown that such an interest justifies criminalizing speech activity otherwise protected by the First Amendment. And the fact that other nations may like us less for granting that protection cannot in and of itself carry the day.

The plaintiffs do not propose to solicit a crime. They will not engage in fraud or defamation or circulate obscenity. And the First Amendment protects advocacy even of unlawful action so long as that advocacy is not “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.

I believe the Court has failed to examine the Government’s justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion. It has failed to require tailoring of means to fit compelling ends. And ultimately it deprives the individuals before us of the protection that the First Amendment demands.
On the one hand, I agree with Roberts in that it stretches credulity to believe persons here in the U.S. would want to engage terrorist organizations strictly for "humanitarian purposes," be it helping Hezbollah build houses in Gaza, or teaching members of al-Qaeda to "play the harmonica." These groups kill people for a living; I'm not sure humanitarian gestures would get you anything more than perhaps killed yourself.

Yet isn't speech of an incendiary nature supposed to be the first speech we need to protect? And doesn't this really boil down to a "should you" versus a "can you" distinction? Meaning, should you be offering al-Qaeda harmonica lessons? Probably not, but can you?

It's a tough issue on which to take sides, other than I would note with an ironic twist that this statute (from the Anti-Terrorism and Effective Death Penalty Act of 1996) only applies to "foreign terrorist organizations designated by the State Department." Supporting homegrown terrorism (militia movements, eco-terrorists, anti-government kooks, etc.), which is far more prevalent and likely to effect you here in the U.S., is somehow ok.

Also, how far could this decision stretch? Could ISP's or domain hosts be held criminally liable if a terrorist organization used their servers to recruit or post videos? Could Google or any other search engine be prosecuted if they allowed access to terrorist websites? Isn't a server or search engine "material support" by definition?

We'll see. I take limited comfort in the fact that the ruling is very narrow, and the majority goes to great lengths to note "All this is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny."

Let's hope that's good enough.

The case is Holder v. Humanitarian Law Project (2010).

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