Do not criminalize the First Amendment

Should advocates for peace and human rights be prosecuted as terrorists? Should it be a crime to file an amicus brief or write an op-ed, simply because in doing so one coordinates with an organization that the United States has placed on a list of disapproved organizations? Could Congress have truly intended to put peace activists in jail for working toward peace?

According to the Supreme Court’s recent ruling in Holder v. Humanitarian Law Project, that is exactly what the law criminalizing “material support” to “foreign terrorist organizations” does. What’s more, the court ruled, the First Amendment poses no obstacle to the criminalization of speech advocating only lawful, nonviolent activity. The result is perverse, even Orwellian: In the name of fighting terrorism, we have turned advocacy of peace and lawful alternatives to violence a crime. Congress should correct this error, by amending the material-support law to exempt such speech. Justice Stephen Breyer pointed the way in his dissent.

The law at issue in Humanitarain Law Project, 18 U.S.C. §2339B, makes it a crime to provide “material support” to designated terrorist organizations. It defines such support to include not only money and arms, but pure speech — “expert advice,” “training” and “service.” And at least on its face, it requires no showing that the speaker intended to further any sort of illegal — much less terrorist — activity.

Under this law, President Jimmy Carter could have been prosecuted for monitoring the 2009 elections in Lebanon, because as part of that task he met with all of the parties to the election – including Hezbollah, a designated “terrorist group” — to provide them with his advice on what constitutes a fair election. That’s “expert advice,” a crime under the statute. Similarly, when the New York Times, Los Angeles Times, and Washington Post published op-eds by Hamas leaders in recent years, they were engaged in the crime of providing “material support” to a designated terrorist group, because working with Hamas and giving it that platform is a prohibited “service.” And it means that my clients, a retired judge and an established human rights group committed to working for peace and the rule of law, cannot continue to work with the Kurdistan Workers Party in Turkey to encourage them to pursue the rights of the Kurds through lawful, peaceful avenues — such as filing complaints before the U.N. Human Rights Committee and engaging in peace conferences.

Is this the kind of “material support” that Congress meant to criminalize? Not according to the bill’s sponsor, Sen. Orrin HatchOrrin Grant HatchSenators debate new business deduction, debt in tax law hearing Romney sits courtside for NBA playoffs, heckles star Trump struggles to get new IRS team in place MORE (R-Utah), who explained in 1996 that the bill “includes provisions making it a crime to knowingly provide material support to the terrorist functions of terrorist groups designated by a Presidential finding to be engaged in terrorist activities. ... I am satisfied that we have crafted a narrow but effective designation provision which meets these obligations while safeguarding the freedom to associate.” As interpreted by the Supreme Court majority, however, the law is anything but narrow, and prohibits aid that has no connection to the “terrorist functions of terrorist groups.”

Those who defend the decision often focus on the provision of funds and argue that money is fungible, and can be used for any purpose. But human rights advocacy is not fungible. It cannot be turned into guns and bullets. It is designed to persuade, not coerce. It is what the First Amendment is all about.

Supporters also contend that this law penalizes speech only when communicated in conjunction with foreign groups that have engaged in homicidal violence, and leaves independent advocacy free. But the First Amendment protects speech in coordination with others as much as “independent” speech – indeed, most speech is communicated to or with another. In the globalized world, Americans’ right to speak with or to foreign groups or organizations is no different from their right to speak with or to domestic organizations. We have as much right to read (or write for) The Guardian as the New York Times. And the fact that terrorist groups have engaged in violence does not warrant criminalizing all speech in association with them. The same argument was made with respect to the Communist Party, which Congress found to be an international conspiracy using terrorism and violence to overthrow the United States by force. Yet the Supreme Court held that the First Amendment protected the right to advocate Communist ideas, to associate with the Communist Party, and to provide it material support by recruiting, speaking at meetings, and the like. We learned, through the excesses of the McCarthy era, that penalizing speech and association is wrong. It is still wrong. And the Supreme Court’s failure to see the parallels puts the burden on Congress to do the right thing.

David Cole, a law professor at Georgetown University, represented the Humanitarian Law Project in the Supreme Court.