Advocacy Is Not A Gun

That is the title of an excellent commentary by Georgetown law professor David Cole, following the deeply disappointing decision of the Supreme Court in the case of Holder v. Humanitarian Law Project [full-text decision, pdf]. By a 6-3 majority, the Court ruled that a federal law, 18 USC s. 2339B(a)(1) which makes it a federal crime to "knowingly provide material support or resources to a foreign terrorist organization" is constitutional.

What is "material support"? The statute defines this term as follows:

“[T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities,weapons, lethal substances, explosives, personnel, and transportation, except medicine or religious materials.”

The main issue was whether the government can criminalize those who engage in giving "expert advice or assistance" to organizations, when that advice or assistance is meant to teach members of those designated organizations to use non-violent means, including legal advocacy, to achieve their goals. In other words, does the attempt to wean people away from violence constitute a criminal act punishable by 15 years imprisonment?

Bowing to the government's pressure, the majority of the Court, led by Chief Justice John Roberts, held that the statute did not violate the plaintiffs' First Amendment rights to free speech and association, nor was it unconstitutionally vague in violation of the Fifth Amendment.

Justice Stephen Breyer filed a dissenting opinion, in which Justices Ruth Bader Ginsburg and Sonya Sotomayor joined.

This is a dangerous precedent, and a disturbing erosion of freedom of speech. As Professor Cole explains:

For the first time ever, the Supreme Court has ruled that the First Amendment permits the criminalization of pure speech advocating lawful, nonviolent activity. The court reasoned that it is conceivable that such speech might burnish a designated group’s image, and thereby “legitimize” it, and therefore Congress can make all such speech a crime.

In the past, the Supreme Court has ruled that the First Amendment protected even the right to advocate criminal activity, so long as one’s advocacy was not intended and likely to produce an imminent crime. And it ruled that citizens had a right to associate with a group engaged in both legal and illegal activities, as lone as they intended to further only the group’s lawful activities.

Today, by contrast, the court rules that speech advocating only lawful, nonviolent activity can be made a crime, and that any coordination with a blacklisted group can land a citizen in prison for 15 years.

Cole explains persuasively why this decision is counterproductive, and will have grave implications. It will hamper the efforts of those engaged in peace activism and in conducting negotiations intended to reduce violence:

The decision has deeply disturbing implications. It means that when President Jimmy Carter did election monitoring in Lebanon, and 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, he was committing the crime of providing “material support,” in the form of “expert advice.”

It means that when The New York Times and The Washington Post published op-eds by a Hamas leader, they were engaged in the crime of providing “material support” to a designated terrorist group, because to publish the op-ed they had to coordinate with a spokesperson from Hamas.

And it means that my clients, a retired judge and an established human rights group, cannot continue to work for peace and human rights without risking long prison terms.

Those who defend this law often focus on the provision of funds — not at issue before the Supreme Court — 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, in short, what the First Amendment is all about. But it is now a crime, and according to this Supreme Court, the First Amendment poses no obstacle to its suppression.

That the Court's conservative majority (with the addition of Justice Stevens) ruled in favor of the government is not really a surprise. In today's environment of fear, it is expected that judges will defer to the government, even when this means undermining basic constitutional rights. What is particularly disturbing is that Elena Kagan, Obama's nominee for the Supreme Court, enthusiastically argued this case for the government in her role as Solicitor General. This does not bode well for her future rulings as a Supreme Court justice.