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Supreme Court Upholds Ban on Political Speech That Aids Peaceful Purposes of Groups Branded as Terrorist

(June 22, 2010) - A majority of the Supreme Court yesterday rejected a First Amendment challenge to parts of a federal law that make it a crime to provide any organization designated by the Secretary of State as “terrorist” with aid in any of its activities, even lawful, nonviolent ones. But the case, Holder v. Humanitarian Law Project, also interpreted the "material support" provisions of the law narrowly, to criminalize only activities "directed to, coordinated with, or controlled by foreign terrorist groups.” “Independent advocacy” in support of such groups, said Chief Justice Roberts for the Court, is not prohibited.

The plaintiffs in the case included the Humanitarian Law Project, a human rights organization that wants to help the Kurdistan Workers’ Party (the PKK) with training in peaceful conflict resolution through international law, and other nonprofit groups that want to assist the Liberation Tigers of Tamil Eelam, or Tamil Tigers, with humanitarian activities. But the PKK and the Tamil Tigers are both listed by the Secretary of State as terrorist groups.

The "Antiterrorism and Effective Death Penalty Act of 1996," or "AEDPA," authorized the State Department to create a list of “foreign terrorist organizations”; then made it a crime to provide “material support” to any listed group. “Material support” was defined to include “training” and other forms of assistance, even if it was for peaceful purposes unrelated to terrorism. Terrorism was also defined broadly, to include virtually any actual or threatened use of a weapon against people or property. In making designations, the Secretary of State was directed to consider the "national defense, foreign relations, or economic interests of the United States.”

Congress amended the law several times, largely in response to court decisions striking down parts of the ban on “material support.” (See Federal Court Strikes Down Part of the "USA PATRIOT Act" for background on this long litigation.) The current version of the law specifies four types of “material support” that the plaintiffs in the case argued are vague, overbroad, and otherwise in violation of the First Amendment. These four provisions, whose validity the Supreme Court has now upheld, make it a crime to provide:

“training,” defined as “instruction or teaching designed to impart a specific skill, as opposed to general knowledge”;

“expert advice or assistance,” defined as “advice or assistance derived from scientific, technical or other specialized knowledge”;
“service,” a term left undefined in the law, but according to the government's attorneys, any “act done for the benefit of” a designated group; and

“personnel,” which includes anybody who works under an
organization’s “direction or control,” but excludes people acting “entirely independently.”

In 2007, the U.S Court of Appeals for the Ninth Circuit found the first three of these four provisions to be unconstitutionally vague. The court explained, with respect to the ban on training, for example, that it “implicates, and potentially chills ... protected expressive activities and imposes criminal sanctions of up to fifteen years imprisonment without sufficiently defining the prohibited conduct for ordinary people to understand.”

But Chief Justice Roberts' opinion yesterday said the terms are not too vague, at least not as applied to these plaintiffs. Nor do the material-support provisions violate the First Amendment, the Court held: only a narrow range of speech is restricted, and even under the "strict scrutiny" required by the First Amendment, the restrictions are justified by compelling government interests. But the Court did not actually subject the government's justifications to very strict scrutiny; instead, it deferred to executive branch judgments about how to combat terrorism.

Justice Breyer’s dissent, joined by Justices Ginsburg and Sotomayor, agreed that the material support provisions are not unconstitutionally vague, but argued that the First Amendment does not permit the government to prosecute people for engaging in teaching and advocacy with lawful political aims, even if that teaching and advocacy is coordinated with a group branded as terrorist. This was because the government did not show that banning such peaceful advocacy is necessary to serve its compelling interest in fighting terrorism. All the activities the plaintiffs want to pursue "involve the communication and advocacy of political ideas and lawful means of achieving political ends," Breyer said. This "speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection."

Breyer specifically took issue with Roberts' argument that even peaceful aid to a group like the PKK or the Tamil Tigers can further terrorism by lending the group legitimacy and allowing it to divert more resources to violence. Under this reasoning, Breyer said, independent advocacy, uncoordinated with the terrorist group, could also be banned on the theory that it helps legitimize the group and buy negotiating time for unlawful ends.

Because of the material-support ban, no U.S. lawyer could file a friend-of-the-court brief for the the PKK or the Tamil Tigers in this case, but several such briefs were submitted on behalf of other individuals or groups, including the Carter Center, established by former President Jimmy Carter to support international human rights, a group called Christian Peacemaker Teams, and 32 "Victims of the McCarthy Era," individuals or their family members or close friends who were blacklisted or otherwise lost their jobs, and in some cases served prison terms, during the late 1940s and 1950s, because of suspected associations with the Communist Party, even though they only supported the Party's peaceful aims, such as labor organizing and racial equality.

As a result of the blacklisting and other forms of political repression during the McCarthy period, the Supreme Court eventually ruled that people who had associated with a group deemed criminal or subversive could not be punished unless the government was able to show "specific intent" - that is, that they knew of and supported the group's unlawful aims. Much of the argument in the Humanitarian Law Project case turned on whether this precedent, which helped put an end to the anti-communist purges of the 1950s, should be applied now to the government's war on terrorism. Justice Breyer and his fellow dissenters argued that it should, but the Supreme Court majority was not persuaded.

The New York Times, one among many critics of the Court's decision, editorialized that because the Supreme Court was not willing to apply the standard of specific intent in this case, Congress should now enact the standard into law.

David Cole, who argued the case for the plaintiffs, said the Court's ruling would not only pemit the government to prosecute anyone filing a court brief in support of a designated organization, but it might also allow a prosecution of former President Carter for such peacemaking efforts as meeting with Hamas and Hezbollah to encourage fair elections in in Palestine and Lebanon.

For the Court's decision, click here.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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