Aid to terrorists and the First Amendment

The case that the U.S. Supreme Court decided this week — prohibiting U.S. citizens from giving “material support” to international terrorist organizations — was argued at the margins of First Amendment law. It restricts “material support” only within the narrow confines of that case.

The Daily Sentinel views protecting Americans’ First Amendment rights as a top priority, and any infringement of those rights is worrisome. However, it is difficult to view the ruling in Holder v. Humanitarian Law as a great blow to Americans’ freedom of speech or a step down some slippery slope to severe First Amendment restrictions.

In the 6-3 decision, the high court upheld a federal law that prohibits U.S. citizens from providing material support to foreign organizations designated as terrorist groups by the U.S. government, even if that support is no more than advising a terrorist group on how to obtain relief aid from the United Nations or teaching its members how to reach their goals by using political processes.

These may seem like benign activities that have little to do with terrorism. But Chief Justice John Roberts, who wrote the majority opinion, cited congressional testimony which indicated that such activities can help terrorist groups further their violent agendas. Obtaining U.N. relief funds may free up other money within a terrorist group to promote violence, he said. It may also help the group recruit new members. And groups such as Hamas, Roberts noted, use their charitable wings and political activities to garner international respect, even as they continue terrorist activities.

Three justices strongly dissented from the majority opinion, but justices on both sides agreed on several points. One is that the First Amendment allows citizens to speak out on behalf of terrorist groups and their goals. They can even associate with members of a terrorist group, so long as they don’t provide them material support. But the First Amendment doesn’t permit U.S. citizens to give financial support to organizations that are deemed a threat to U.S. security, or to provide training to them in, say, the use of explosives.

So Holder v. Humanitarian Law was about more clearly defining what ” material support” consists of. Roberts’ opinion made it evident that the ruling applies to the facts of this case. He acknowledged that the constitutionality of other cases may have to be determined, depending on how the law is applied in those instances.

Even so, Monday’s ruling amounts to sanctioning some congressionally approved restrictions on how Americans may exercise their right to free speech, balanced against national security concerns. Limitations on free speech are always troubling. But the limitations in this case apply only in very restricted circumstances and don’t suggest a broad attack on the First Amendment.


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