The U.S. Supreme Court's 6-3 decision Monday to uphold a vague law allowing Americans to be prosecuted for helping foreign terrorist groups seek political change through nonviolence was an assault on the First Amendment. Rather than making America safer, as the court claimed, the decision only makes it more likely that Americans' right to free speech and association will be limited regardless of whether they attempt to aid terrorist violence.
Holder vs. Humanitarian Law Project stems from a lawsuit brought by U.S. groups working for human rights abroad. They challenged a federal law — expanded after the 9/11 attacks — that makes it a crime to provide "material support" to a foreign terrorist organization. The definition of material support reasonably includes money, arms or logistical support for attacks. But it also includes providing "expert advice or assistance" and "service" to any terrorist group.
The activists wanted to provide two groups properly deemed foreign terrorist organizations by the State Department — the Liberation Tigers of Tamil Eelam and the Kurdistan Workers' Party — advice on how to use peaceful means to achieve their goals. But the activists risked 15 years in prison for providing so-called "material support."
Chief Justice John Roberts, writing for the court, said national security concerns made it okay to punish this kind of support since even something benign can bring legitimacy to a group and free resources for its violent acts. Roberts said activists still are free to independently promote groups' goals, but they may not work with terror groups to further those goals.
But Justice Stephen Breyer's strong dissent was more persuasive, finding the law in violation of the First Amendment. In answering Roberts, Breyer challenged the assertion that a message coordinated with a terror group brings it more legitimacy than when independent voices speak out. And on freeing up resources, Breyer said it makes sense to ban donations and technical support such as computer training that can be turned to violent uses, but not nonfungible activism that pushes a group toward peaceful goals.
The way the statute now stands, President Jimmy Carter might be subject to prosecution for having monitored elections in Lebanon and met with Hezbollah, advising them on fair voting procedures. The same could be said for journalists who cover terror groups and quote spokesmen, academics who study terrorism, newspapers that publish an op-ed piece by a leader of Hamas, or an attorney who files a friend-of-the-court brief on behalf of a terror group.
Throughout history, terrorist groups once labeled incorrigibly violent — such as the Irish Republican Army and Nelson Mandela's African National Congress — have made the transition into the mainstream. Blocking terrorist groups from any American assistance in making this transition is absurd and does not make America safer.
Monday's ruling is not without precedent. Before, in times of great national fear, the Supreme Court has eroded constitutional rights in deference to the political branches. It happened when the court accepted the internment of innocent Japanese-Americans during World War II and when it allowed the prosecution of Communist Party members. Those rulings were later corrected, either by Congress or the court. Congress should respond to the material support case by correcting the court's handiwork and narrowing the statute to allow legitimate activities and associations.