THE BLOG
06/23/2010 10:03 pm ET Updated May 25, 2011

'Material Support' and the First Amendment

In Monday's decision in Holder v. Humanitariam Law Project, a divided Supreme Court upheld a provision of the Patriot Act making it a crime for any person knowingly to provide "material support" to a foreign terrorist organization. "Material support" is defined to include not only money, weapons and facilities, but also "advice or assistance."

The plaintiffs, who challenged the constitutionality of the statute under the First Amendment, want to advise several terrorist organizations, which engage in political and humanitarian as well as violent activities, how to use international law to resolve their disputes peacefully, and to engage in political advocacy on behalf of these organizations and their causes.

Can an American citizen who is sympathetic to such an organization deliver a speech or write a blog arguing that the organization's activities are morally defensible? Can an American citizen who supports such an organization send it a book about how best to present its case to the International Court of Justice?

Plaintiffs asserted that the statute violates the First Amendment, because it does not require the government to prove that, in assisting such organizations through otherwise constitutionally protected speech, the speakers specifically intended to encourage or facilitate unlawful activity. Rather, under the statute, it is enough for the government to prove that the speakers knew that the groups engage in violence.

In addressing the First Amendment issue, Chief Justice Roberts observed that "the government's interest in combating terrorism is an urgent objective of the highest order," and that Congress had found that "any form of material support furnished 'to' a foreign terrorist organization" might have "harmful effects," regardless of the intent of the speaker. For example, such "support frees up other resources within the organization that may be put to violent ends" and "helps lend legitimacy" to terrorist groups -- "legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds -- all of which facilitate more terrorist attacks."

Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented, arguing that the government had "not [made] the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in the communication and advocacy of political ideas and lawful means of achieving political ends."

Breyer questioned how, precisely, the application of this statute to otherwise constitutionally protected speech significantly protects the security of the United States. He challenged Roberts' "freeing-up" argument, noting that there "is no obvious way in which undertaking advocacy for political change is fungible with other resources that might be put to more sinister ends in the way that donations of money, food, or computer training are fungible." He also dismissed Roberts' "legitimation" argument, noting that any speech that defends a group or its cause can help to legitimate the organization. Indeed, "once one accepts this argument, there is no natural stopping place," for the argument logically applies to anyone who says anything that might seem to defend or support the rights or interests of a terrorist organization.

Chief Justice Roberts conceded that political advocacy that justifies or defends the actions of terrorist organizations is not punishable as "material support" if it is made independently of the group itself. Thus, the logic of Roberts' position seems to rest largely on an unstated analogy to the law of criminal conspiracy, which typically requires that the parties to the conspiracy agree to work together to carry out a criminal enterprise. At the core of that agreement, however, is the specific intent to commit a crime.

Now, nothing in the First Amendment requires the government to prove specific intent when it punishes individuals for knowingly providing weapons or facilities to terrorist organizations, for those acts involve no First Amendment rights. But when individuals support such organization with otherwise constitutionally protected speech, the situation is different.

Indeed, the Supreme Court held fifty years ago in Scales v. United States that the government could not constitutionally punish an individual for knowingly joining the Communist Party, which had "both legal and illegal aims," unless it could prove that the individual specifically intended "to bring about the overthrow of government as speedily as circumstances would permit." That decision was right in 1961, and it should have stated the governing First Amendment principle in HLP, as well. Sadly, Chief Justice Roberts made no serious effort to justify the distinction, other than to say that membership is not the same as material support. That's not exactly a model of principled decision-making.