Abusing the Material Support Law to Suppress Free Speech

Mere months after Citizens United struck down restrictions on corporate speech, in Holder v. Humanitarian Law Project, 561 U.S. ___ (2010), the Roberts court ruled that the First Amendment permits Congress to imprison human rights activists for up to fifteen years merely for advising militant organizations on ways to reject violence and pursue their disputes through lawful means. The court upheld Section 303 of the Antiterrorism and Effective Death Penalty Act, which makes it a crime to knowingly provide “material support or resources” to a designated terrorist organization, even when the speech support consists only of speech advocating peace and human rights. Lower courts had struck down the provision as unconstitutional, but the Obama administration (represented by Elena Kagan) appealed.

Specialists in peaceful conflict resolution and disaster relief who wanted to interact with the Kurdistan Workers Party and Liberation Tigers of Tamil Eelam challenged the terms “training,” “expert advice or assistance,” “service,” and “specialized knowledge” as unconstitutionally vague. The KWP and LTTE engage in a variety of both lawful and unlawful activities and are designated as terrorist organizations by the Secretary of State.

Under this law, advising Hezbollah while monitoring elections in Lebanon or publishing Op-Eds by Hamas leaders would be criminal. In the past, the Supreme Court has ruled that the First Amendment protected the right to advocate even criminal activity, so long as advocacy was not intended and likely to produce an imminent crime. In Humanitarian Law Project, says civil rights attorney David Cole, “the Court ruled for the first time in its history that speech advocating only lawful, nonviolent activity can be subject to criminal penalty.”1

As Cole explains, the court reasoned that speech advocating peace might “legitimate” a listed group, thereby interfering with U.S. foreign policy. Chief Justice Roberts even speculated that advising an organization on how to file human rights complaints might permit the group to use the law to “threaten, manipulate, and disrupt,” and helping a group pursue peace might give it cover to prepare for its next attack.2 Roberts stressed that the law only reached speech “coordinated” with listed groups, not independent advocacy or speech coordinated with domestic groups.

– Thom Cincotta -

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1    David Cole, “The Roberts Court vs. Free Speech,” New York Review of Books (Aug. 19, 2010).

2    This reasoning sounds precariously close to right-wing arguments that Israel is under attack by “Lawfare” – human rights groups’ use of international law to challenge abuses and war crimes in occupied territories.  See The Lawfare Project.