The Roberts Court vs. Free Speech

Holder v. Humanitarian Law Project

a case decided by the Supreme Court, June 24, 2010

On January 21, in its first decision of its recent term, Citizens United v. Federal Election Commission, the Supreme Court’s five-member conservative majority announced that the First Amendment bars Congress from restricting the ways corporations can employ their vast financial resources to drown out the voices of ordinary people in federal election campaigns. On June 21, in one of its last decisions of the term, Holder v. Humanitarian Law Project, the same majority, this time joined by Justice John Paul Stevens, 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 two decisions purported to apply the same First Amendment standard, but in fact the Court applied that standard in radically different ways. In the Roberts Court’s world, corporations’ freedom to spend unlimited sums of money apparently deserves substantially greater protection than the freedom of human rights advocates to speak.

Ronald Dworkin has cogently identified the errors in the Court’s legal reasoning in Citizens United, a decision President Obama himself has criticized.1 But you won’t see the President condemning the decision in Humanitarian Law Project, the first Supreme Court case to pit free speech rights against national security since the September 11 attacks. At issue was a federal law banning “material support” to “foreign terrorist organizations” even when the “support” consists only of speech advocating peace and human rights. The lower courts had repeatedly declared the provisions that prohibit speech unconstitutional, but the Obama administration—represented by Elena Kagan, the solicitor general—appealed to the Supreme Court, to which she was later nominated. (I argued the case for the Humanitarian Law Project, an organization that works to promote human rights and peace in conflict-ridden regions.)

The material support law, enacted as part of the 1996 Antiterrorism and Effective Death Penalty Act and expanded by the 2001 Patriot Act, gives the secretary of state virtually unchecked authority to formulate a list of “foreign terrorist organizations.” The list currently includes, among others, Hamas, Hezbollah, and the Kurdistan Workers’ Party of Turkey. It is a crime to provide “material support” to listed groups, not only in the form of money or weapons, but also in the form of speech; the law specifically prohibits anyone from providing them with “expert advice,” “training,” and “services.” According to the Obama administration the law prohibits even speech that seeks to discourage violence by encouraging lawful alternatives.

Under this law, when former President Jimmy Carter monitored the June 2009 elections in Lebanon, and met with each of the parties to advise them on fair election practices, he could have been prosecuted for providing “material support,” in the form of “expert advice,” to a designated group, because he advised Hezbollah. When The New York Times, Los Angeles Times, and The Washington Post published Op-Eds by Hamas leaders in recent years, they, too, were committing the crime of providing “material support” to a designated terrorist group,…

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