Not-So-Sweet Charity

Erin Miller at SCOTUSBlog:

In Holder v. Humanitarian Law Project (08-1498; 09-89), the Court affirms in part, reverses in part, and remands on a 6-3 vote.  Chief Justice Roberts writes the Court’s opinion, while Justice Breyer dissents, joined by Justices Ginsburg and Sotomayor.

  • Holding: The federal material-support statute is constitutional as applied to the particular kinds of support that the parties in this case seek to provide to foreign terrorist organizations.  The Court concludes that, as applied to these individuals and groups, the statute does not violate the free speech clause of the First Amendment.
  • Note: On the bench, Justice Breyer read from his dissent.

The full texts of the four opinions, and the briefs in the granted cases, appear after the jump.

American Constitution Society:

The Supreme Court, voting 6-3, upheld a federal law that bars “material support” of groups the government deems are terrorist organizations.  The Associated Press reports that the majority opinion, written by Chief Justice John Roberts, finds that the government “may prohibit all forms for aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities.” Roberts wrote that the “material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future.”In Holder v. Humanitarian Law Project a group of individuals and nonprofit organizations, including the Los Angeles-based Humanitarian Law Project challenged the constitutionality of the material support provision. The groups sought to provide financial support and legal and political training to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). Both of those groups had been designated by the State Department as foreign terrorist organizations. Roberts wrote that the government “has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens.”

The groups and individuals who wanted to provide financial support and training for peaceful political purposes to the PKK and LTTE argued that the material support law violated their free speech rights and association rights, and that the law is unconstitutionally vague.

Ed Morrissey:

Hamas would be one such example.  It conducts terrorist attacks against Israel with one part of its organization while running charitable endeavors with another.  Fundraising for Hamas to support its outreach programs would allow Hamas to use the money elsewhere, or even if the specific money was applied to the charitable work, it would allow Hamas to not have to dip into the charity funds for its terrorist activities.

That has long been accepted legal theory in the US, but until now it hasn’t been applied to non-monetary support.  It’s a murkier question, as “advice” is not a fungible commodity.  Assistance in building a proposal to the UN doesn’t translate into terrorist activity as easily as money does, mainly because it’s specific to the task.  However, the Supreme Court has wisely decided that the basic issue is one of terrorist intent on the organization as a whole, and not the subordinate intentions of its internal agencies.  Supporting a designated terrorist group in anything is in essence material support for terrorism.

Justice Stephen Breyer, the AP reports, read his dissent aloud in a show of frustration with the majority opinion, rather than just release the written brief.  Breyer was joined by Sonia Sotomayor and Ruth Bader Ginsburg, in what would be no great shock.  The report fails to mention that John Paul Stevens, soon to retire from the Court, joined the conservative majority on this question.  That seems rather newsworthy, and the AP’s failure to mention it seems equally newsworthy.

Jacob Sullum at Reason:

Today the Supreme Court upheld the federal ban on providing “material support” to groups identified as “foreign terrorist organizations” by the secretary of state. The activists challenging the statute feared prosecution for encouraging the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam, both of which appear on the State Department’s list, to pursue their goals through nonviolent means. As described by the district court, the plaintiffs wanted to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes,” “engage in political advocacy on behalf of Kurds who live in Turkey,” “teach PKK members how to petition various representative bodies such as the United Nations for relief,” and “engage in political advocacy on behalf of Tamils who live in Sri Lanka.” The Supreme Court’s ruling (PDF) says the activists were correct to worry that such projects, though speech aimed at promoting lawful activities, would be considered “material support,” which includes the broad categories of “training,” “expert advice or assistance,” “personnel,” and “service.” But in the view of six justices, this restriction on freedom of speech is justified as part of the fight against terrorism. While not ruling out the possibility that future applications of the law might violate the First Amendment, the majority opinion by Chief Justice John Roberts says the Constitution allows Congress to criminalize the speech contemplated by the plaintiffs in this case, based on the premise that any assistance to terrorist groups, no matter its nature or aim, helps legitimize them and continue their violent activities.

Eugene Volokh:

Let’s look at the general problem: American speakers can do many things that help foreign terrorist organizations, both those that are directly fighting us, such as al Qaeda, and those that aren’t, such as the Kurdish separatist PKK and the Tamil separatist LTTE. They can train them to more effectively engage in terrorism. They can train them to deal with international bodies (one of the issues involved in the Humanitarian Law Project case). They can coordinate publicity campaigns with them.

Speakers can also independently write newspaper editorials or op-eds praising the PKK and the LTTE, and arguing that they should be taken off the foreign terrorist organization list, or even be supported by the U.S. government. They can independently organize demonstrations making the same arguments. They can independently write academic papers making the same argument, or appear on television making it. Politicians and candidate for office can make the same arguments.

And all these things, both those coordinated with the groups (the first paragraph) and those done entirely independently will undermine “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.” The undermining will be indirect, and will happen through means such as increasing the groups’ perceived legitimacy, helping them acquire more resources to engage in terrorism, and letting them reroute their already-acquired resources to terrorism. (It might even embolden the groups to keep fighting, in the hopes that if they hold out long enough, the politicians who praise them might gain power and change American foreign policy in a way that supports the groups.) But as the Court pointed out in Holder v. Humanitarian Law Project, such indirect threats to the compelling government interest may nonetheless be real threats. Therefore, if one really takes seriously the Court’s assertion — which has often been made in other cases — that content-based speech restrictions are constitutional if they are “narrowly tailored to serve a compelling state interest,” all this speech, including the independent advocacy, could be criminalized.

But this can’t be so, it seems to me — which is why the majority (1) took pains on several occasions to note that the law didn’t apply to independent advocacy, (2) said that “In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations,” and (3) stressed that, “Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.” We Americans must have the right to try to persuade our fellow citizens, and our government, that our government is on the wrong side in various foreign policy controversies, that groups that the government says are bad guys are actually good guys (or at least less bad than the really bad guys), or that we should change our policies about which kinds of support to the bad guys are barred and which are allowed. To do that, we need to be able to make arguments defending or even praising those groups, even when such arguments help designated foreign terrorist organizations, and thus interfere with “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.”

If I’m right, then this means that in this situation speech can’t be restricted even when the restriction is indeed necessary to serve a compelling government interest. The free speech rule there isn’t that the restriction is valid only if it passes strict scrutiny — it’s that the restriction is per se invalid. That’s the argument I make as to other restrictions in my Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997); and I think that the majority’s ruling in Holder v. Humanitarian Law Project is not inconsistent with that argument. To be sure, the majority doesn’t hold that a ban on independent advocacy would be unconstitutional even though such a ban might be necessary to serve a compelling government interest; it expressly reserves that question. But I think that the majority’s repeated stress that the law doesn’t restrict independent advocacy suggests that the Court would indeed strike down such a ban that applied to independent advocacy. And I think it would have to do that, if it takes seriously the importance of speech to democratic self-government (which I think the Court has indeed done in recent decades).

The Jawa Report:

Good on them! Now add IHH to the list, the so called Humanitarian aid group that sponsored, along with the backing of the Turkish Prime Minister, the Jihadi Flotilla of hate.

Digby:

The bottom line is that money is now considered equivalent to speech in more ways than just electioneering. If you believe that multi-national corporations are exercising a right to free speech by spending unlimited funds to influence elections to their benefit, then you would naturally assume that exercising your right to free speech to influence organizations is equivalent to giving them money. The consistent concept for this court isn’t free speech at all, it’s their belief that money equals speech. I don’t find this outcome surprising in the least. Once you make the leap then this is the logical outcome. And I would guess it won’t be the last time we see this.

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Filed under GWOT, Homeland Security, Supreme Court, The Constitution

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