What Happened to Brandenburg?

By Ruthy Taranto

The First Amendment has taken a hard hit. With heightened national security and the dreaded “T-word” lurking, the liberty/security balance has been tipped. Civil liberties has taken a time out while Government moves full steam ahead in the name of safety. What is an advocate with an unpopular cause to do?

The right to free speech is a friend of the advocate but an easy target to suppress. Recall that it is not the role of Government to “giveth and then taketh away”; it is Government’s role to protect this right, especially when it is under attack. In theory this sounds straightforward, but real life has proven to be more complicated. Advocates, take note.

The case is Holder v. Humanitarian Law Project, 2010 U.S. Lexis 5252. At issue was federal law 18 U. S. C. §2339B which prohibits “knowingly providing material support or resources to a foreign terrorist organization.” Material support may take the form of money, weapons, training, services, transportation, and speech, among other things. The law specifically prohibits anyone from giving expert advice to terrorist organizations. The question before the courts was what if the expert advice is on how to handle disputes lawfully and the speech advocates only nonviolent activity? After 12 years of litigation, the Supreme Court granted certiorari and answered accordingly.

On June 21, 2010, in a 6-3 decision, the Supreme Court ruled that advising militant organizations (so designated as “terrorist” organizations) on how to handle disputes peacefully and lawfully constitutes “material support” to a terrorist organization. A retired judge, several human rights groups, and others that comprised the Humanitarian Law Project (HLP) can no longer work for peace on behalf of the Kurdistan Workers’ Party (PKK) in Turkey or on behalf of the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka. Teaching members of these organizations on how to use humanitarian and international law to peacefully resolve disputes, training the organizations on how to petition the United Nations for relief, and political advocacy on behalf of the PKK and LTTE constitutes “material support” and is condemned criminal activity.

Surely anyone who has given Brandenburg the once over would come to the opposite conclusion? In the past, the First Amendment has even secured citizens’ rights to express approval of criminal activity, so long as the speech was not intended and not likely to incite imminent lawless action. If Brandenburg implies that inflammatory speech, such as advocacy of criminal conduct, is protected then the First Amendment should certainly protect the advocacy of lawful activity.  The Supreme Court decided no. The HLP (and everyone else) is banned from “coordinating” with terrorist organizations, regardless of whether the coordination consisted of advocating lawful alternatives and discouraging criminal activity. Arguably, §2339B can land a humanitarian in prison for up to 15 years for an act that some may even call righteous.

The reasoning of the Supreme Court is that organizations such as PKK and LTTE are so tainted by their terrorist activity, that any contribution, such as expert advice, facilitates terrorist conduct. According to the Supreme Court, it does not matter if the HLP intended to only contribute to the legal activities of the organizations, and not the illegal; the legal activities are so corrupted by the illegal that they are one in the same. Support given to any activity of a terrorist organization is support given to lawless, violent conduct.

It is one thing to use our criminal justice system to put away terrorists when we finally catch them. It is quite another to use our criminal justice system against Americans who speak out to so designated “terrorist organizations” in order to guide them in the right direction. There are advocates who speak out for much less a worthy cause.

Furthermore, the Court reasoned that even if the speech did not directly lead to violence, it might “legitimate” the group. Advising a terrorist organization on lawful conduct may help the organization use the law to its own illegal advantages. But this is all hypothetical. Hypothetical situations do not trump First Amendment rights. Prevention seems to be on the mind of the Court, but it is likely a wrong assumption that the HLP did not have prevention in mind.

If you are not an advocate with an unpopular cause and you believe that this particular violation of free speech does not apply to you, I urge you to reconsider. When speech prohibitions are not narrowly tailored as they should be, it is an abuse of governmental power. Everyone has a stake in Government’s abuse of power, not just the humanitarian groups whose futile efforts are highlighted in Holder. There may come a day when you find yourself on the wrong side of the violation and the rest of us will be forced to keep our collective mouth zipped lest it constitute “material support.”

Ruthy Taranto is a second year student at Brooklyn Law School in New York.