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Terrorism, Material Support and the First Amendment

By / 7.6.2010

There is no freedom more sacrosanct in the U.S. legal system than the First Amendment right to free speech. The First Amendment protects speech that a lot of people may find offensive: pornography, violent movies, even hate speech. The Supreme Court is fiercely protective of the right, and does not hesitate to strike down any law that encroaches on it. However, on June 21, the Supreme Court departed from that stance when it handed down its decision in a case challenging maybe the most important anti-terrorism law in the U.S. arsenal.

The case, Holder v. Humanitarian Law Project, concerned a federal law commonly referred to as the “material support” statute. The law criminalizes a range of activities aimed at helping terrorist groups. The plaintiffs in the case are a collection of groups and individuals who sued the federal government to declare the “material support” statute unconstitutional as it applies to their activities with respect to two known terrorist organizations. In this specific instance, the plaintiffs wanted to provide money, legal aid, and political advocacy for two groups that the secretary of state declared to be terrorist organizations. One of their central arguments was that criminalizing its ability to advocate for those organizations was an unconstitutional restriction of their First Amendment rights.

In a 6-3 decision, the Supreme Court sided with the government saying that the statute did not unconstitutionally impinge on the plaintiffs’ right to free speech. The crux of the Court’s 36-page opinion is this: The nature of the acts of terrorist organizations is so nefarious that support in any form, even when the support goes towards legal activities, is an illegal act that Congress can constitutionally regulate. The Court did identify advocacy that is “entirely independent” of a terrorist organization as permissible under the statute, but that any assistance directed at or by a specific terrorist organization or organizations is illegal.

In support of its stance that the statute does not encroach on the right to free speech, the Court paints a convincing picture of how the statute promotes a compelling governmental interest to fight terrorism and how the plaintiffs’ proposed action may help a terrorist organization further its illegal objectives. The opinion points out that supporting legal activities can free up an organization’s resources, allowing it to direct those resources towards planning and carrying out acts of terrorism. Providing legal advice or political advocacy can also help legitimize an organization, making it easier to recruit members and raise funds.

The Court lays out a logical and convincing argument as to why activities like those proposed by the plaintiffs in this case should be restricted; but what are all the different types of activities that could be considered to materially support terrorism? For example, what if Hamas wanted to sue someone or was being sued and they wanted to hire an American law firm? Besides the obvious fact that providing legal assistance to a terrorist organization would be a public relations nightmare for an American law firm, such an act, like the legal assistance that plaintiffs in this case proposed to provide, also appears to be illegal.

The Court’s bottom line here is that terrorist organizations do not segregate their legitimate activities from their criminal ones. Any money that they raise through legitimate channels is likely to go towards supporting violence. The same goes for political or legal aid. While the Court’s rationale is solid, it seems that there will likely be future arguments over what kinds of actions the “material support” statute actually proscribes and what degree of connection someone must have with a terrorist organization for their advocacy actions to be considered illegal.

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