The First Amendment took a hit this week as the U.S. Supreme Court decided the government could prosecute those offering “material support” to foreign terrorist groups, even if the support is as benign as teaching those groups how to pursue grievances peacefully.
The ruling went too far, infringing on the free speech and free association rights of Americans in the name of national security.
It has been long settled that it’s against the law to give terrorist groups money or training that would help them kill people. But this 6-3 decision said even peaceful assistance to groups on the State Department’s terrorist list was illegal.
As Justice Stephen Breyer wrote in his dissent, the government did not show how this prohibition would combat terrorism.
It is easy to see how money or even items such as computers given to such a group for a peaceful aim could be redirected to nefarious activity. However, it’s not clear how teaching a group about human rights law could be channeled into violent activity.
The case arises from a challenge brought by the Humanitarian Law Project, an American human rights group that was intent on advising two designated terrorist groups in how to resolve problems peacefully and work through the United Nations.
The two groups are the Liberation Tigers of Tamil Eelam (Tamil Tigers) and the Kurdistan Workers’ Party (PKK), which have an undisputed history of violence.
The majority opinion, written by Chief Justice John Roberts, said even assistance intended to further non-violent aims could serve to legitimize these groups and offend allies who work with the U.S. to fight terrorism. “At bottom, plaintiffs simply disagree with the considered judgment of congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization,” Roberts wrote.
As troubled as we are by this reduction in First Amendment rights, we were somewhat mollified by the court’s obvious attempt to draw its decision narrowly, and impose strict standards in deciding whether any future government censorship attempts are constitutional.
The court said people acting independently — not in concert with the terrorist organizations — still can say anything they want about those groups.
In our view, the government must be conservative in how it chooses to enforce the law in light of this legal victory. And we hope the courts that have occasion to reflect on this decision in deciding future cases hew closely to its narrow application.
This is the first time since 9/11 that the Supreme Court has weighed in on Americans’ First Amendment rights in the context of the war on terror. We hope the court is more favorably disposed to protect Americans’ civil liberties the next time around.
