Speech That Is Now a Crime

09/15/2010 05:12 am ET | Updated May 25, 2011
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Last month, in a 6 to 3 decision, the US Supreme Court upheld a section of the Patriot Act that explicitly makes it a crime to "speak" to any of the 45 groups on the State Department's index of foreign terrorist organizations.

The case did not dispute the validity of the law against providing financial support for such groups, but instead criminalizes anyone offering advice on humanitarian issues. This includes advice on how to appeal to world bodies such as the United Nations regarding human rights offenses. Writing for the majority, Chief Justice Roberts called the law a preventative measure. "It criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to occur," Roberts wrote. 

Now former President Jimmy Carter would be subject to prosecution for talking to groups in the Middle East in his quest for peace, as would former President Clinton who has negotiated with Irish freedom fighters included in the State Department's list.

Writing for the dissent, Justice Stephen Breyer noted that national defense concerns should never be used to trump the rights of free speech implicitly outlined in the constitution. Solicitor General Elena Kagan argued the case on behalf of the State Department.

I've been involved in civil rights cases for over twenty five years and the First Amendment right was always the most sacred of our civil rights.  This is the first time speech has been defined as a crime, even when it's directed towards peaceful activity.

Step back for a moment and look at this.  A Government agency creates a list of organizations, 45 to be exact, and if you speak to anyone on that "list", concerning legal or humanitarian advocacy, then you become one of the condemned.

Liberty is not something that gets taken away from us all at once. It gets chipped away at slowly.

John O'Hara is an attorney.  He lives in Brooklyn

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