'Material Support' Bans and the Criminalization of Political Advocacy

By Wendy Kaminer

Monday the Supreme Court took our country back to the mid 20th century -- a time when people were criminally prosecuted and professionally persecuted for pure political advocacy and association (or suspected association) with the Communist Party.  In a 6-3 opinion, in Holder v Humanitarian Law Project (HLP), the court upheld prohibitions on providing "material support" to foreign organizations designated as terrorist groups by the State Department, without due process -- even when that "support" is innocently rendered in the form of advice on peaceful conflict resolution and other human rights advocacy.  
The case involved a longstanding challenge by human rights activists, represented by the Center for Constitutional Rights, to provisions of a Clinton-era law, the 1996 Anti-Terrorism and Effective Death Penalty Act.  (You can find legal briefs and a summary of the complicated litigation history here.)  The legal complexities of the case and apparent reasonableness of an allegedly targeted ban on assisting foreign terrorist groups obscure its effect on pure, peaceful political advocacy and association.  It's easy to misrepresent the "material support" ban as a necessary, even common sense effort to deter foreign terrorism.  Who wouldn't support a ban on enabling terrorist violence? If only the material support ban did just that.
First, there are few if any checks on the State Department's authority to designate foreign terrorist organizations; the Secretary of State is empowered to make "an un-reviewable assessment of whether the group advances or impairs American foreign policy or economic interests," the HLP brief stresses.  But, as people mistakenly placed on no-fly lists can attest, executive branch officials cannot be trusted with broad, un-reviewable discretion to compile accurate terrorist blacklists and apply them intelligently, without targeting innocent American citizens.  Given this disregard for due process, the administration's list of designated foreign terrorist organizations, which triggers the material support ban, should be regarded with some skepticism.
Second, "material support" is defined very broadly to include peaceful political advocacy, even when offered with the intent of deterring rather than enabling violence.  (Forgive me for repeating myself, but this point cannot be made often enough.)  The plaintiffs "seek to advocate peaceful, lawful action to secure political ends, and they seek to teach others to do the same," Justice Breyer observed in dissent (joined by Justices Ginsburg and Sotomayor). Or as the HLP brief explains:

Plantiffs -- a retired judge, a medical doctor, a human rights organization, and several nonprofit groups -- seek to engage in pure political speech promoting lawful, nonviolent activity.  Specifically, they would like to resume what they were doing before the statutory prohibitions at issue here were triggered: teaching and advocating the use of international law and other nonviolent means to reduce conflict, advance human rights, and promote peace. [H]owever, if plaintiffs communicate such ideas to, for, or with direction from an organization that the government has labeled terrorist, they risk prosecution under that statute, which makes it a crime, punishable by fifteen years in prison, to provide "training," "expert advice or assistance," "service," or "personnel" to such groups.  The government has stated unequivocally that these provisions make it a crime for plaintiffs to submit an amicus brief in federal court, to petition Congress or the United Nations for legal reform, or even to speak to the media, for the benefit of a designated organization, as well as to teach such an organization human rights advocacy or English.

How did six Supreme Court justices rationalize the criminalization of human rights advocacy?  In part, they relied on declarations by the government that any assistance to foreign terrorist groups (even in the form of assistance intended to advance peace) legitimizes the groups and "frees up" resources that may be "put to violent ends."  They also stressed that the law prohibits peaceful political speech only when it is "coordinated" with blacklisted groups, not speech offered independently of them.  So presumably you can deliver a speech chronicling the humanitarian activities of a designated group, but you cannot advise that same group on the methods and benefits of disavowing violence.  
Somehow this distinction makes sense to the majority (and is deemed a sufficient constitutional basis for criminalizing pure political speech).  But as Justice Breyer suggested in dissent, it makes no sense: Independent speech about a designated group may legitimize the group as much (or more) than advice to the group on conflict resolution.  Breyer was equally dismissive of the assertion that such advice enables terrorism by "freeing up" the group's resources: "The Government has provided us with no empirical information that might convincingly support this claim."  Nor did it make a factual showing that the speech proposed by the plaintiffs in HLP would confer any particular "legitimacy" on a designated group.  
In other words, the government did not establish an actual need to prosecute people for peaceful political speech.  And the court rejected an obvious statutory reading that would have balanced (at least to some extent) national security concerns with free speech rights: As Breyer observed, the court could have immunized speech that was not intended to enable terrorism.  It could have construed the material support ban to criminalize political speech and association "only when the defendant knows or intends that those activities will assist the  organization's unlawful terrorist actions."  Instead, the majority gave the administration a blank check to criminalize political speech specifically intended to advance peace.
Mistrust of federal officials is high these days, except, it seems, on the Supreme Court (although the conservative majority defers to Congress erratically, primarily when it agrees with congressional results.)  In essence, Holder v HLP empowers the president and his appointees to suspend our core First Amendment rights preventatively, without due process, based on unsubstantiated speculation that our peaceful political advocacy might encourage terrorism.  So much for the rights Americans are dying to defend.

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