By David Cole, a professor at Georgetown University Law Center. Professor Cole was counsel for the Humanitarian Law Project in Holder v. Humanitarian Law Project and will be a panelist during an ACS Symposium this Thursday on legal policy shifts in the ten years since 9/11. Learn more about the symposium here.
In the early days after September 11, some commentators argued that while we had sacrificed greatly in terms of privacy and other rights, at least the First Amendment remained strong. Unlike World War I, for example, people were free to express their opposition to the “war on terror” without fear of being sentenced to ten years in prison, as Eugene Victor Debs was in 1918. But maybe World War I was not the right benchmark. In at least one significant area -- speech and association deemed to provide “material support” to terrorist groups -- our First Amendment rights are considerably less robust in the wake of 9/11 than they were before. And the Supreme Court’s 2010 decision upholding as constitutional the Bush and Obama administrations’ overly broad interpretation of that law sets dangerous precedents for speech rights in the future.
The “material support” law gives the executive the power to designate as a “foreign terrorist organization” any group that is foreign, has used or threatened to use a weapon against person or property, and whose activities undermine our “national defense, foreign relations, or economic interests.” The last criterion, the courts have said, is not judicially reviewable. Once a group has been designated, the law makes it a crime to provide it with virtually any kind of assistance, regardless of the intent or likely effect of the aid on terrorism. The law defines “material support” broadly to include pure speech advocating only lawful, peaceful activity, including “expert advice” or “training” of any kind.