Free Speech, Peacemakers and the Supreme Court

On February 23 the U.S. Supreme Court will hear oral argument for Holder v. Humanitarian Law Project, a constitutional challenge to laws that make it a crime to provide material support to designated terrorist groups, including "support" that is aimed at reducing violence.

Human rights groups argue that material support laws violate the First Amendment because they punish pure speech and freedom of association that is intended to further lawful, peaceful, and nonviolent activities.

Plaintiffs are comprised of six organizations, a retired federal administrative law judge, and a surgeon. They filed suit in 1998 when they wished to provide human rights and conflict resolution training to the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), both designated as foreign terrorist organizations by the U.S. The Humanitarian Law Project (HLP) postponed its planned training pending the outcome of the case. Represented by the Center for Constitutional Rights (CCR), HLP argues that the material support statute violated their First and Fifth Amendment rights.

One of the plaintiffs is civil rights attorney Ralph D. Fertig who fears prosecution under the current law if he helps a Kurdish Group in Turkey, which happens to be on the U.S. terrorist list, find peaceful ways to obtain their goals. Fertig said, “I think it’s more dangerous than McCarthyism, it was not illegal to help the communists or to be a communist. You might lose your job, you might lose your friends, you might be ostracized. But you’d be free. Today, the same person would be thrown in jail…Fear is manipulated, and the tools of the penal system are applied to inhibit people from speaking out.”

The Supreme Court case is limited to the specific facts of the case and whether the definitions of training, expert advice or assistance derived from specialized, scientific or technical knowledge, service and personnel are unconstitutionally vague. Although a decision requiring more specific definitions would greatly benefit many charitable operations, which can be constrained by uncertainty over what the law does or does not allow, the case will not result in a humanitarian exemption to the law as that issue is not before the court. Congress, however, is in a position to address it.

Why does the Obama administration feel compelled to defend the part of the law that criminalizes peacebuilding? Isn’t this counterproductive to our national interests? Do efforts to get people to lay down arms really present a threat to our national security?