CRF Blog

‘Terror’ and Everybody’s Rights

by Bill Hayes

In ‘Terror’ and Everybody’s Rights for the New York Review of Books, Jed S. Rakoff reviews A War Like No Other: The Constitution in a Time of Terror by Owen Fiss.

But such examples illustrate how fragile the First Amendment can be in a time of peril. And in the 2010 Supreme Court case of Holder v. Humanitarian Law Project, the Court came perilously close to upholding the power of the government to criminalize any speech that could be construed as supporting a terrorist organization. The relevant statute, section 2339B of the Federal Criminal Code, makes it a federal crime to knowingly provide material support to any entity designated by the secretary of state as a “foreign terrorist organization.” The term “material support” is defined to include, among other things, providing a “service” to the organization. Fear has been expressed that this could be read to include speaking in favor of the organization or praising any of its activities, even activities that are benign.

Because of this fear, US supporters of two groups that had been designated by the secretary of state as terrorist organizations — a pro-Kurdish group in Turkey and a pro-Tamil group in Sri Lanka — sought a “declaratory judgment” (a kind of advance ruling) that they could not be prosecuted under the statute for speaking out on behalf of certain nonviolent activities of these organizations.

The Supreme Court might have granted the plaintiffs’ application by simply construing the statute not to include speech. Instead, in a 6–3 decision written by Chief Justice Roberts, the Supreme Court in Holder v. Humanitarian Law Project took the position that, while the statute could not criminalize speech independently initiated by the US supporters of these organizations, it could reach advocacy “performed in coordination with, or at the direction of” the terrorist organization, since such speech would constitute a “service” to the organization. It would not matter, moreover, that the speech only advocated the peaceful activities of the organizations in question, since even such advocacy would help the organization in its overall activities, including acts of terrorism.

Fiss, an expert in First Amendment law, is highly critical of both the reasoning and the result in Holder v. Humanitarian Law Project …. [more]