Supreme Court Upholds 'Material Support' Ban

Today the Supreme Court upheld the federal ban on providing "material support" to groups identified as "foreign terrorist organizations" by the secretary of state. The activists challenging the statute feared prosecution for encouraging the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam, both of which appear on the State Department's list, to pursue their goals through nonviolent means. As described by the district court, the plaintiffs wanted to "train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes," "engage in political advocacy on behalf of Kurds who live in Turkey," "teach PKK members how to petition various representative bodies such as the United Nations for relief," and "engage in political advocacy on behalf of Tamils who live in Sri Lanka." The Supreme Court's ruling (PDF) says the activists were correct to worry that such projects, though speech aimed at promoting lawful activities, would be considered "material support," which includes the broad categories of "training," "expert advice or assistance," "personnel," and "service." But in the view of six justices, this restriction on freedom of speech is justified as part of the fight against terrorism. While not ruling out the possibility that future applications of the law might violate the First Amendment, the majority opinion by Chief Justice John Roberts says the Constitution allows Congress to criminalize the speech contemplated by the plaintiffs in this case, based on the premise that any assistance to terrorist groups, no matter its nature or aim, helps legitimize them and continue their violent activities.

In a dissenting opinion joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Stephen Breyer says the majority is too quick to accept this argument:

I cannot agree with the Court’s conclusion that the Constitution permits the Government to prosecute the plaintiffs criminally for engaging in coordinated teaching and advocacy furthering the designated organizations' lawful political objectives. In my view, the Government has not met its burden of showing that an interpretation of the statute that would prohibit this speech- and association-related activity serves the Government's compelling interest in combating terrorism. And I would interpret the statute as normally placing activity of this kind outside its scope.

I discussed the case here and here.

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  • Apologetic California||

    "I cannot agree with the Court’s conclusionthat the Constitution permits.." How can you be an SC justice and still make silly typos. The typo makes their entire argument invalid.

  • WTF||

    You're kidding, right?

  • kinnath||

    The activists challenging the statute feared prosecution for encouraging the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam, both of which appear on the State Department's list, to pursue their goals through nonviolent means.

    They'll just need to follow the lead established by Sinn Fein and establish a political organization with no history of violence.

  • ||

    This is an incredibly awful decision, and no surprise that that wonderful defender of civil rights John Paul Stevens joined the majority. Has there been a new exception carved out of the 1st amendment in the past 20 years that Stevens hasn't supported?

  • ||

    "In my view, the Government has not met its burden of showing that an interpretation of the statute that would prohibit this speech- and association-related activity serves the Government's compelling interest in combating terrorism."

    Ahhh, the old compelling interest. The government can do anything it wants so long as it can show sufficient compelling interest.

  • ||

    If you don't allow for any compelling interest exceptions, then laws against slander, libel, fraud, threats, and perjury all become unconstitutional. The concept has a good purpose, but it is being abused by the majority in this case.

  • ||

    Solicitation of bribes too. It's a pure speech act.

  • ||

    Hey Tulpa, has slobbering on the cock of authority gotten old yet? Just checking. Is your jaw tired?

  • Warty||

    Blowjob jokes? How immature of you, Epi.

  • ||

    It amuses me greatly to be called immature by a child rapist such as yourself.

  • Warty||

    I'm not the immature one, it's them. Or more specifically, their genitalia. I would expect you of all people to understand the distinction, you pill-addled fuckstick.

  • ||

    If you don't allow for any compelling interest exceptions, then laws against slander, libel, fraud, threats, and perjury all become unconstitutional.

    Freedom of speech doesn't mean freedom from the consequences of speech.

    Libel, slander, and fraud all cause identifiable harm to identifiable persons. You aren't free to cause harm, even with your speech.

    Perjury is a little different, and perhaps best viewed as a breach of contract. You took an oath, you broke the oath - that's what you're being prosecuted for. If you say the exact same lies only not under oath, no prosecution.

    Any speech in furtherance of a criminal scheme can be illegal - you're free to speak, but not free to pursue illegal schemes. I think this would cover soliciation of bribes, conspiracy, and threats.

    All of these are consistent with freedom of speech, in my book.

  • ||

    You aren't free to cause harm, even with your speech.

    True statements can be just as harmful as libel and slander. Indeed, that's why libel and slander are destructive -- the audience believes them to be true.

    Saying derogatory (but true) things about a person who is about to be hired for a job to the person in charge of hiring causes identifiable harm to the would-be employee. Would a law requiring only nice things to be said about potential employees be consistent with free speech?

    The speech of the woman who posed as a 13-year-old on MySpace for the express purpose of causing a girl to commit suicide caused identifiable harm to that girl.

    Would laws against these sorts of actions also be justified in view of the 1st amendment?

  • ||

    Perjury is a little different, and perhaps best viewed as a breach of contract. You took an oath, you broke the oath - that's what you're being prosecuted for. If you say the exact same lies only not under oath, no prosecution.

    So if I tell my girlfriend that I swear to have sex only with her, the whole sex, and no sex with anyone else, so help me God, and then the next week I sleep with Scarlett Johanson, I can be prosecuted for perjury?

  • ||

    Any speech in furtherance of a criminal scheme can be illegal - you're free to speak, but not free to pursue illegal schemes. I think this would cover soliciation of bribes, conspiracy, and threats.

    What if I have no intention of following through with the criminal scheme? That question especially pertains to threats, which most of the time are just bluffing.

  • ||

    So, if Secretary of State Clinton had named the Honduran government that ousted Zelaya from power to be a "terrorist organization", anyone who publicly took their side in the dispute would be guilty of providing material assistance?

    I'm assuming here that the Secy of State can't designate organizations headquartered inside the US as terrorist organizations. If that assumption doesn't hold, then the implications of this ruling become even more ominous.

  • ||

    Already covered, Tulpa. You have heard of Janet Incompe-tano, no?

  • Pedant||

    Congress shall make no law... abridging the freedom of speech...

    Just so I'm clear, all the justices agree that the First Amendment's protections against the government can be waived when such waiving is of "compelling interest" to the government; they only differ on what they think is compelling.

    Is it still too early to shoot the bastards?

  • ||

    So laws against perjury, death threats, and fraud are unconstitutional in your opinion?

  • Context||

    Perjury is covered by your procedural rights in a court of law. Death threats are covered in your right to life and personal security. Fraud is robbery, only by persuasion rather than force. Neither is a "raw" speech act.

  • ||

    Slander comes close to restricting raw speech, but then it's not slander if it's the truth and if it's a lie then it is a form of indirect fraud that can only be adjudicated in civil court if damages can be proven.

  • ||

    A criminal defendant, or a witness for the defendant, is guilty of perjury if they lie under oath in a way that helps them get acquitted. No one's procedural rights are being violated by such an act.

    Death threats do not harm one's life or bodily integrity. They are just words. Not sure what personal security is supposed to mean, but you probably don't have a right to it.

    Fraud is not robbery, as the exchange of goods is completely voluntary. There's a reason we have separate words for them (and separate laws!).

  • Context (the person)||

    When a defendant or their witness lies, they violate the procedural rights of those who are seeking the redress of something in court. For every crime there is one or more victims (well ok, not really, but in theory there are).

    Death threats are taken to mean an incitement (or self-incitement) to murder. Of course, some can and should be taken with more seriousness than others. But I would think that a death threat is not illegal for speaking as such, but for the chance of acting on it or if, like in your example below, it comes with demands, making it an instrument for coercion.

    Fraud is akin to robbery because the voluntary in the exchange comes from the expectation that the seller honestly gave you all the information they had about the product or service you are buying. If they knowingly lied to you to make the sell or increase the price, you are not agreeing to what they really sold you, but to what they told you they'd sell you.

    Here the speech is a necessary part of the crime, because if the seller honestly didn't know better either both of you would be suckers, but the seller wouldn't really be a thief. There is a crime only because the seller changed the information they gave you in order to modify your decision to buy or not, or what price to pay - which can only be done through speech.

  • bile||

    If it doesn't include the infringement of another's rights. Fraud the act of lying in order to steal. It's the theft that is a problem. Not the lying. Perjury could be viewed the same way. As for death threats. They need to be substantiated by action. Even today an "I'll kill you." is not prosecuted unless there is serious belief the person will *act* on those declarations.

  • robc||

    This is where the bubble theory of rights comes in handy. Your right expands until it bumps into someone else's rights. Hence, any speech that violates others' rights isnt free speech. The 1st amendment restriction isnt on speech, only free speech.

  • ||

    Good luck getting laws against bribery solicitation, perjury on behalf of a criminal defendant, and fraud in under that umbrella.

    Of course, you can just make stuff up like everyone else who responded to my post did.

  • Pedant||

    "So laws against perjury, death threats, and fraud are unconstitutional in your opinion?"

    Perjury: yes, particularly in the context of coerced speech.

    Death threats: yes. Acting on those threats, or contributing to those threats being acted upon incurs culpability for some actual crime, e.g., assault, murder.

    Fraud: no, since it is breach of contract which is prohibited, not the words uttered beforehand. This is plainly evident as such laws do not prohibit the exact same speech made if no breach occurs.

    I can think of other examples, too.

    Murder-for-hire: the act of speaking is not the issue, but rather the culpability of the hirer in the attempted murder.

    Shouting fire in a crowded theater: it is commonly accepted that such shouting would be perfectly legal if the theater was on fire, and it is commonly accepted that it would be illegal to pull the fire alarm if the theater was not. My understanding is that pulling a fire alarm is not speech, so what then is the true common thread?

    In my view (which I'm probably not clearly conveying) it is that speech (broadly defined) should not be restricted, but that certain acts may be, and those actors are not protected from culpability merely by using speech as a vehicle. The simple test would be: if no other actual non-speech-related crime occurs, then it should not be prohibited; if one does occur, then it is that crime for which they are culpable.

  • ||

    Death threats: yes. Acting on those threats, or contributing to those threats being acted upon incurs culpability for some actual crime, e.g., assault, murder.

    OK, let's say I live in an open carry state, and go to my neighbor's house (via the sidewalk and up to the front door, so no trespassing concerns) carrying my gun and tell them I'm going to kill him and his entire family if they don't mow their lawn that day.

    Let's say the neighbor caves and mows his lawn. You're saying my speech actions in this matter should be legal?

  • ||

    Fraud: no, since it is breach of contract which is prohibited, not the words uttered beforehand. This is plainly evident as such laws do not prohibit the exact same speech made if no breach occurs.

    Fraud does not always take the form of breach of contract. If I say this gold-colored metal lump in my hand is 14 karat gold, and sell it to you for the going price of gold, but it's really just a lump of iron with gold paint on it, I've committed fraud but NOT breached any contract. You gave me the money in exchange for the lump of metal.

    Now, if I offer you the same gold-painted lump of metal for the same price, and you pay it, but without me actually claiming it was pure gold, I have not committed fraud. Speech makes the difference.

  • ||

    Just ask yourself: am I in court for speaking, or for the harm caused by my speech, my breach of a contract, or for my participation in criminal activity?

    If the latter, your free speech rights are uninfringed.

    This case comes closest, I suppose, to participation in a criminal activity. However, I think it falls far short of the mark, there. Bad decision.

  • ||

    Just ask yourself: am I in court for speaking, or for the harm caused by my speech, my breach of a contract, or for my participation in criminal activity?

    A person in court charged with making death threats doesn't easily fall into any of the "uninfringed" categories.

  • Bill||

    Not terribly germane to the discussion, but the fire-in-a-crowded-theatre thing is prohibited because of the resulting mayhem you cause. It's a form of reckless endangerment.

    I've hated the "speech police" since I was (no joke!) 5 years old. In kindergarten I referred to writing something in "cursive", and a snotty little apple-polishing brat in my class tattled on me for saying a "curse" word.

    I'm sure she's a Darwin Award winner by now.

  • robc||

    You should have used "niggardly" and seen what happened.

  • strat||

    robc, don't remind me. I chose to see the silver lining in that event in D.C. It showed that there was actually a way to cause attrition in the ranks of the public sector, though unjustly.

  • ||

    So, if I advise a terrorist to turn himself in to the authorities, I'm giving him "material support" and can be jailed?

    How about if in self defense I kill a terrorist who desires martyrdom?

    Neither of these examples is any more absurd than what the USSC just declared to be "material support to terrorists".

  • ACORN||

    Just as long as we're exempt, we don't give a shit what happens.

  • Chase||

    Yep.

    Once again libertarians show they are beyond stupid.

    "How about if in self defense I kill a terrorist who desires martyrdom?"

    You're a retard.

    I love hows theres always this innocent activist slant to everything. I bet all you retards believe that the Flotilla was peaceful, well let me remind you retards about the weapons and the say.... night vision goggles that not even American citizen could get their hands on.

  • strat||

    I'm still upset that the USG chased Al Manar off of satellites in North America with this "support for terrorism" rationale. I used to find it quite edifying to watch an actual news channel for a designated terrorist organization every morning, even if it was disquieting to hear the newscaster speak of "martytdom operations."

    I got some classic looks when I once mentioned to colleagues in a U.S. Government SCIF that I watched Al Manar's 7:30 news every morning. Someone asked "You actually watch that?" To which I replied "You mean to tell me you people don't?"

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