Speech criminalized in US Supreme Court material support case

[TamilNet, Friday, 25 June 2010, 01:51 GMT]
In a decision announced Monday, the U.S. Supreme Court ruled 6-3 to criminalize speech in Holder v. Humanitarian Law Project, the first case to challenge the Patriot Act before the Supreme Court, and the first post-9/11 case to challenge primacy of national security claims over free speech guarantees. The plaintiffs were organizations and individuals who wanted to continue to support lawful political and humanitarian activities of two groups designated as terrorist: the Kurdistan Workers’ Party (PKK), and the Liberation Tigers of Tamil Eelam (LTTE), an advocate for self-determination of the Tamils in Sri Lanka.

Chief Justice Roberts wrote for the majority, affirming in part, reversing in part, and remanding the case back to the lower court for review.

Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.

Prof. David Cole
Prof. David Cole
Solicitor General Elena Kagan
Solicitor General Elena Kagan
The Court held that the statute's prohibitions on "expert advice," "training," "service," and "personnel" were not vague, and did not violate speech or associational rights as applied to plaintiffs' intended activities.

Justice Bryer in his dissent said, "I believe the Court has failed to examine the Government’s justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion. It has failed to require tailoring of means to fit compelling ends. And ultimately it deprives the individuals before us of the protection that the First Amendment demands."

The US Solicitor General and the next Supreme Court nominee Elena Kagan argued for the US Government.

Professor David Cole of Georgetown University Law School who argued for Center for Constitutional Rights (CCR), a non-profits New York based organization representing the plaintiffs, said, “We are deeply disappointed. The Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime. That is wrong,” according to the CCR website.

Attorney Kadilal on the case history taped
prior to Supreme Court decision
CCR's Senior Attorney Shayana Kadidal said, “The Court’s decision confirms the extraordinary scope of the material support statute’s criminalization of speech. But it also notes that the scope of the prohibitions may not be clear in every application, and that remains the case for the many difficult questions raised at argument but dodged by today’s opinion, including whether publishing an op-ed or submitting an amicus brief in court arguing that a group does not belong on the list is a criminal act. The onus is now on Congress and the Obama administration to ensure that humanitarian groups may engage in human rights advocacy, training in non-violent conflict resolution, and humanitarian assistance in crisis zones without fearing criminal prosecution.”

If the State moves to place limitations in fundamentail rights such as free speech through legislative action, the Supreme Court applies the "strict scrutiny" standard where the State has to show that it has a "compelling" interest in limiting the freedom, and that the legislation is "narrowly" tailored to achieve the result sought by the State.

US Government Attorney Ms Kagan said that the Government's statute when applied to plaintiffs’ proposed speech, regulated not speech but conduct, and therefore needed to meet only a low standard – “intermediate scrutiny” – to survive.

The Court rejected the government’s argument but found that the statute did criminalize speech on the basis of its content, but then found that the government’s interest in delegitimizing groups on the designated "terrorist organization" list was sufficiently great to overcome the heightened level of scrutiny.

This one of a very few times that the Supreme Court has upheld a criminal prohibition of speech under strict scrutiny, and the first time it has permitted the government to make it a crime to advocate lawful, nonviolent activity, CCR website said in the analysis.

Attorneys and legal scholars say that under the Court’s ruling, many groups and individuals providing peaceful advocacy could be prosecuted, including President Carter for training all parties in fair election practices in Lebanon. President Carter submitted an amicus brief in the case.


Chronology:


External Links:
WP: Oregon judge knocks down part of Patriot Act
CNN:  Federal judge rules 2 Patriot Act provisions unconstitutional
CCR: History and associated documents of the material support case
USLaw: Federal Judge Rules Unconstitutional Parts of Patriot Act
EPIC: USA Patriot Act

 

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