Supreme Court Criminalizes Speech in Ruling in Patriot Act Case

Today,
the U.S. Supreme Court ruled 6-3 to criminalize speech in Holder v.
Humanitarian Law Project, the first case to challenge the Patriot Act
before the highest court in the land, and the first post-9/11 case to pit free
speech guarantees against national security claims. Attorneys say that under
the Court's ruling, many groups and individuals providing peaceful
advocacy could be prosecuted, including President Carter for training all
parties in fair election practices in Lebanon. President Carter submitted an
amicus brief in the case.

Chief Justice Roberts wrote for the majority, affirming in
part, reversing in part, and remanding the case back to the lower court for
review; Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.
The Court held that the statute's prohibitions on "expert advice,"
"training," "service," and "personnel" were not
vague, and did not violate speech or associational rights as applied to
plaintiffs' intended activities. Plaintiffs sought to provide assistance and
education on human rights advocacy and peacemaking to the Kurdistan Workers'
Party in Turkey, a designated terrorist organization. Multiple lower court
rulings had found the statute unconstitutionally vague.

Said CCR Cooperating Attorney David Cole, "We are deeply
disappointed. The Supreme Court has ruled that human rights advocates,
providing training and assistance in the nonviolent resolution of disputes, can
be prosecuted as terrorists. In the name of fighting
terrorism, the Court has said that the First Amendment permits Congress to make
human rights advocacy and peacemaking a crime. That is wrong."

Originally brought in 1998, the case challenges the
constitutionality of laws that make it a crime to provide "material
support" to groups the administration has designated as "terrorist."
CCR's clients sought to engage in speech advocating only nonviolent,
lawful ends, but the government took the position that any such speech,
including even filing an amicus brief in the U.S. Supreme Court, would be a
crime if done in support of a designated "terrorist group."

Said CCR Senior Attorney Shayana Kadidal, "The
Court's decision confirms the extraordinary scope of the material support
statute's criminalization of speech. But it also notes that the scope of
the prohibitions may not be clear in every application, and that remains the
case for the many difficult questions raised at argument but dodged by
today's opinion, including whether publishing an op-ed or submitting an
amicus brief in court arguing that a group does not belong on the list is a
criminal act. The onus is now on Congress and the Obama administration to
ensure that humanitarian groups may engage in human rights advocacy, training
in non-violent conflict resolution, and humanitarian assistance in crisis zones
without fearing criminal prosecution."

The Court rejected the government's argument that
the statute, when applied to plaintiffs' proposed speech, regulated not
speech but conduct, and therefore needed to meet only a low standard -
"intermediate scrutiny" - to survive. Instead, the Court
found that the statute did criminalize speech on the basis of its content, but
then found that the government's interest in delegitimizing groups on the
designated "terrorist organization" list was sufficiently great to
overcome the heightened level of scrutiny. This is one of a very few
times time that the Supreme Court has upheld a criminal prohibition of
speech under strict scrutiny, and the first time it has permitted the
government to make it a crime to advocate lawful, nonviolent activity.

For more information on the case, including briefs and a
detailed explanation of material support, visit CCR's HLP legal
case page