‘Material support’ ruling may break 1st Amendment ground

Tuesday, June 22, 2010

WASHINGTON — Yesterday’s Supreme Court decision in Holder v. Humanitarian Law Project may have broken new First Amendment ground by upholding a restriction on speech even after applying “strict scrutiny” — the highest level of judicial review — to the law at issue.

Strict scrutiny is usually fatal to government regulation of speech, but it wasn’t this time, as the Supreme Court, by a 6-3 vote, upheld a federal law that criminalizes “material support” — including training and “expert advice” — to groups that have been designated as terrorist organizations. Human rights groups had claimed the law’s vague language would chill and punish benign education
projects and speech aimed at defusing the conflicts that lead to terrorism.

“This is the first time that the Supreme Court has applied strict scrutiny and found a statute to satisfy that strict standard,” lamented Georgetown University Law Center professor David Cole, who argued against the law before the high court. “The Court came to this conclusion without the kind of demanding scrutiny the doctrine requires.”

First Amendment law expert and Volokh Conspiracy blogger Eugene Volokh at first appeared to agree with that analysis yesterday afternoon. But by last night, Volokh had returned to his blog to revise his view, offering the possibility that in fact the Court had created a new, somewhat more speech-protective level of scrutiny. He rethought things because the Court had explicitly permitted independent advocacy of terrorist groups — not coordinated with the organizations — even if it might harm national security. Because this speech alternative is available, the Court felt more justified in walling off coordinated speech as illegal — even though dissenting Justice Stephen Breyer said defining “coordination” would in itself be difficult.

Volokh’s shifting analysis is a sure sign that yesterday’s decision will be analyzed for months and years to come to determine how far it went in charting a new, post-9/11 course for free-speech protection. A New York Times editorial today said that the ruling represented the first case since 9/11 “to test free speech against the demands of national security in the age of terrorism, [and] the ideals of an earlier time were eroded and free speech lost.”

The law first appeared in the Antiterrorism and Effective Death Penalty Act of 1996. The plaintiffs challenging the law were the Humanitarian Law Project, its president, Ralph Fertig, and others seeking to aid the Kurdistan Workers Party, which advocates establishing a Kurdish state in Turkey, and the Tamil Tigers, which wants an independent Tamil state in Sri Lanka. Both were designated as terrorist groups under the law by then-Secretary of State Madeleine Albright in 1997.

“This is a very dark day in the history of human rights,” said Fertig after reading the decision yesterday. He said his group would continue its peaceful advocacy work, “but we do so with great fear.”

The initial challenge was brought soon after AEDPA was passed. After the law was found unconstitutionally vague in 1998, Congress sought to clarify or expand its provisions by amending it, first in the 2001 in the USA Patriot Act, which added “expert advice or assistance” to the list of prohibited activities, and again in 2004. But each time it has been changed, judges have struck down parts of the law.

The latest ruling by the 9th U.S. Circuit Court of Appeals found the law was not overbroad but that provisions barring “training” and “expert advice or assistance” were unconstitutionally vague.

The high court decision was a victory for Solicitor General Elena Kagan, who defended the law in oral argument. But the majority opinion did criticize the government for arguing that only conduct, and not speech, was at issue in the case. And Chief Justice John Roberts Jr., who authored the majority opinion, did say the law does not restrict “independent advocacy” that is not coordinated with the designated groups.

But Cole said that would still enable the government to prosecute groups filing a court brief in support of a designated organization, and might even allow for prosecution of former President Jimmy Carter for his peacemaking efforts. In monitoring the elections in Lebanon and Palestine, Carter has met
with groups such as Hamas and Hezbollah to encourage fair elections.

Another aspect of the decision that may gain attention is what might be called its “secondary-effects” theory justifying restrictions on speech. In other words, the speech or conduct involved in the case was not just evaluated on its own, but also for what other conduct it might facilitate.

Roberts gave strong deference to “the considered judgment” of Congress and the executive branch that even benign support for groups with terrorist aims helps further their violent activities.

For example, Roberts said, planned training for the Kurdistan group on techniques of peaceful dispute resolution could aid its terrorist goals by “buying time to recover short-term setbacks, lulling opponents into complacency, and ultimately preparing for renewed attacks.” He added, “A foreign terrorist organization introduced to the structures of the international legal system might use the information to threaten, manipulate, and disrupt.” Such support might also lend legitimacy to the terrorist group, Roberts said.

Justice Stephen Breyer’s dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, attacked this theory. “This ‘legitimacy’ justification cannot by itself warrant suppression of political speech, advocacy, and association,” Breyer wrote. “Speech, association, and related activities on behalf of a group will often, perhaps always, help to legitimate that group. Thus, were the law to
accept a ‘legitimating’ effect, in and of itself and without qualification, as providing sufficient grounds for imposing such a ban, the First Amendment battle would be lost in untold instances where it should be won. Once one accepts this argument, there is no natural stopping place.”


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