Issue 111, Winter 2009/2010

Can Speech be “Material Support” to Terrorists?

In September, the Supreme Court agreed to hear Holder v. Humanitarian Law Project, a case challenging provisions of the anti-terrorism laws that make it a crime to give “material support,” including “training” and “expert advice or assistance,” to any group designated as a terrorist organization by the U.S. government.

The plaintiffs are individuals and human rights groups that seek to provide training in non-violent dispute resolution and human rights advocacy to the PKK, which seeks to establish a Kurdish state in Turkey, and to the Tamil Tigers, which seeks to establish an independent Tamil state in Sri Lanka.  The government lists both as “terrorist organizations.” The plaintiffs argue that the “material support” laws create guilt by association and criminalize the provision of non-violent human rights training and other legal activities – including pure speech – having nothing to do with terrorism.

The Ninth Circuit held that the challenged provisions are impermissibly vague. The Obama administration argues that they are a “vital part of the nation’s effort to fight international terrorism” and that the law, which “regulates conduct, not speech” is “readily understandable by persons of ordinary intelligence.”

“Hillary: The Movie” – The Case

Citizens United v. Federal Elections Commission, a Supreme Court case challenging the constitutionality of part of the federal election law, involves a 90 minute film about Hillary Clinton’s presidential campaign, which promotes an anti-Hillary message. The Court must decide whether the film is “electioneering communication” and therefore subject to regulation under campaign finance laws, or a political editorial that is fully protected under the First Amendment.

The Court heard arguments on the case last March, but did not reach a decision. Instead, it ordered the parties to submit new briefs focusing on whether two election law precedents, which allow the government to ban corporate and union expenditures in campaigns, should be overturned on First Amendment grounds.

On September 9th, the Supreme Court reheard arguments in the case.  The issues addressed in the rehearing were much broader than the original question before the Court and focused on whether government restrictions on corporate spending in elections violates the First Amendment, or whether regulation of corporate campaign spending is constitutionally justifiable.

Depictions of Animal Cruelty

The position advanced in NCAC’s amicus brief in U.S. v. Stevens (see CN 110) received welcome support from Justice Scalia at the oral argument on October 6. He observed that “It’s not up to the government to tell us what are our worst instincts.” Justice Alito asked – hypothetically, we assume – if Congress could outlaw a “Human Sacrifice Channel.”  A decision is expected by summer 2010. See Views on the News for more.

Supreme Court Remands Case Involving Photos of Detainee Abuse

In 2003, the ACLU filed a Freedom of Information Act (FOIA) request for information about the treatment of detainees in Iraq and Afghanistan. Six years later and we’re still waiting.  In 2008, the Second Circuit Court of Appeals ordered the government to release the pictures and the Obama administration indicated it would comply.

Then, in the spring of 2009, the government announced a change of policy citing the inflammatory nature of the photos and concern that they might instigate violence against US personnel overseas. The case headed to the Supreme Court.

Meanwhile, Secretary of Defense Robert Gates sought congressional approval to withhold the photos, and Congress obliged.  On Nov. 30, the Supreme Court sent the case back to the Second Circuit for reconsideration in light of the new statutory provision.  It remains to be seen whether the Circuit Court will conclude that Congress has tied its hands, leaving the public in the dark about what exactly we did in the effort to promote democracy and freedom.