By David Cole, a professor at Georgetown University Law Center, and counsel to several charities and foundations objecting to expansion of the "material support" statute.
Last summer, the Supreme Court ruled that the First Amendment did not protect speech advocating peace and human rights if expressed to, or in conjunction with, a foreign group that the United States has designated "terrorist." The Court's decision in Holder v. Humanitarian Law Project employed reasoning that could have broad implications for First Amendment freedoms generally, as it held that the government's interest in denying "legitimacy" to a proscribed organization was a "compelling interest" that justified a content-based law criminalizing speech urging only lawful, nonviolent conduct.
But two cases now pending in federal courts of appeals threaten to expand still further the reach of laws banning "material support" -- to prohibit aid even to organizations that have never been "designated" as terrorist or otherwise proscribed by the government. Their resolution will be the next front in the struggle to protect civil liberties from the mandate to suppress support for terrorism. They threaten to expand the law far beyond the already broad reach the Supreme Court endorsed in Humanitarian Law Project, and to chill the legitimate humanitarian aid activities of countless charities and foundations across the United States.
In the first case, United States v. El Mezain, pending in the U.S. Court of Appeals for the Fifth Circuit, a federal judge ruled that individuals can be held criminally liable under the "material support" statute not only for supporting groups the government has formally designated and placed on an official list, but also for supporting non-designated groups, not on any government lists, if the government later proves that the non-designated group was linked to a designated group. The court required no showing that the donor knew or even should have known that the non-designated group was in any way connected to a proscribed organization.
If this decision is upheld, any charity that provides aid or does work in conflict-ridden regions around the world will be vulnerable to prosecution. Even if the charity engages in due diligence, carefully checks the government's lists of proscribed groups and individuals, and scrupulously avoids funding anyone on the list, it could still be prosecuted. Under this view of the law, there is literally nothing a charity can do to ensure that it will not be prosecuted - short of exiting the field altogether. The decision has such sweeping ramifications that the defendants' appeal has been supported by an amicus brief from a wide variety of charities, foundations, and non-governmental organizations - including the Council on Foundations, which represents 1,750 U.S.-based foundations; the Carter Center, founded by former President Jimmy Carter; the American Friends Service Committee; the Rockefeller Brothers Fund; the conservative Rutherford Institute; and the bipartisan Constitution Project.