Speech and expression

  • January 3, 2011

    Current law and administration policy on providing "material support" to groups labeled terrorist organizations is leading to perverse results in which "the right to make profits is more sacrosanct than the right to petition for peace," writes Georgetown law professor David Cole in The New York Times.

    Just last month, Cole points out, a group of politicians that included former New York mayor Rudolph Giuliani and former attorney general Michael Mukasey, may have committed a crime when they told a group of Iranian exiles in Paris that President Barack Obama should remove the opposition group Mujaheddin-e Khalq from its list of foreign terrorist organizations.

    What was once considered free speech may now be criminal, in the wake of the Supreme Court's decision last year in Holder v. Humanitarian Law Project, holding that it is a crime not only to provide any "material support" to a group labeled a "foreign terrorist organization," but also to engage in speech coordinated with a foreign terrorist group for its benefit, Cole explains.

    He continues:

    The government has similarly argued that providing legitimate humanitarian aid to victims of war or natural disasters is a crime if provided to or coordinated with a group labeled as a "foreign terrorist organization" - even if there is no other way to get the aid to the region in need. Yet The Times recently reported that the Treasury Department, under a provision ostensibly intended for humanitarian aid, was secretly granting licenses to American businesses to sell billions of dollars worth of food and goods to the very countries we have blockaded for their support of terrorism. Some of the "humanitarian aid" exempted? Cigarettes, popcorn and chewing gum.

    Cole calls for reform of material support laws that would protect the provision of "legitimate" humanitarian aid, and make clear that "advocating only lawful, nonviolent activities" is not a crime and that "corporate interests in making profits from cigarettes are not sufficient to warrant exemptions from sanctions on state sponsors of terrorism."

    "Genuine humanitarian aid and free speech can and should be preserved without undermining our interests in security," he writes.

    Cole, who is litigating several other cases involving "material support" law, explained in a recent ACSBlog guest post how two other cases pending before federal appeals courts could "dramatically extend the already expansive sweep of the ‘material support' laws."

  • December 30, 2010
    Education Policy

    By James C. Foster, a professor of political science at Oregon State University-Cascades.
    When Joseph Frederick and his thirteen buddies hoisted their now (in)famous banner at the moment the 2002 Winter Olympic Torch Relay passed Juneau-Douglas High School, their stunt - and Principal Deborah Morse's reaction - set in motion a controversy that eventually reverberated all the way to the U.S. Supreme Court (SCOTUS). The outcome was what I term the "messy Morse" decision. The nine Justices wrote five separate opinions. The slim majority itself is deeply fragmented being, in effect, a 2-1-2 mélange ranging from Justices Alito's and Kennedy's wary concurrence, to Justice Thomas' belligerent rejection of Tinker v. Des Moines, with only Chief Justice Roberts and Justice Scalia embracing an unvarnished "drug speech exception" to secondary school students' First Amendment rights.

    The January 24, 2002 incident on Glacier Avenue did not have to come to this pass. Among the insights I garnered from researching, thinking about, and writing my book on what blew up into "a perfect constitutional storm in Alaska's Capital," I want to highlight two here. Perhaps these are better described as lessons learned. First, in the event, when push came to litigating, Alaska state courts would have been the preferable venue in which Frederick could have contested his claims (under Article I § Five of the Alaska Constitution). Second, and fundamentally, push need not have come to litigating at all.

  • December 17, 2010
    Guest Post

    By Stephen I. Vladeck, a professor at American University Washington College of Law. Vladeck testified at yesterday's House Judiciary Committee Hearing (pictured) on the legal and constitutional issues raised by WikiLeaks. Video of the full hearing is available here.
    One of the most refreshing things about yesterday's House Judiciary Committee hearing on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks," at which I was one of the seven witnesses, was the focus of the conversation. Rather than the WikiLeaks bashfest I initially feared that the hearing might turn into, an overwhelming majority of the conversation (and of the Members' questions) focused on prospective reforms to federal espionage, whistleblower, and classification laws, and not just for the "next" WikiLeaks situation. Instead, folks seemed to take seriously the myriad ways in which the vagueness and ambiguity of the current Espionage Act ultimately redounds to the benefit of no one (a point that Abbe Lowell, Ken Wainstein, and I each elaborated upon in our testimony).

    If one theme came through in particular, it was the need for federal law to formally distinguish between three distinct classes of cases: (1) traditional espionage, where a spy steals national security secrets in order to benefit a foreign power; (2) unauthorized leaking by government employees; and (3) the retention and retransmission of classified information by private citizens with no intent to harm national security or benefit a foreign power. With regard to the first category, I think most were in agreement that, although the key is a strong and precise specific intent requirement, such a requirement would go a long way toward both obviating any First Amendment concerns and limiting the statute to that conduct that really is classical espionage, with appropriately harsh corresponding penalties.

  • December 3, 2010
    The Smithsonian's National Portrait Gallery quickly cowered under political pressure, yanking a video from an exhibit showcasing gay artists, and in the process allowed free expression and artistic work to be trampled by tired cultural war tactics, notes First Amendment expert and scholar Charles C. Haynes.

    In a post for the First Amendment Center, Haynes reports that in late November the so-called Catholic League for Religious and Civil Rights helped spark hysteria over a portion of the exhibit, a video by the late David Wojnarowicz that included "an 11-second image of a crucifix with ants crawling on it." The religious right organization, as Haynes, notes said the video amounted to so-called hate speech, and rallied conservative lawmakers in Congress to call for the Smithsonian to remove the video. Predictably, conservative lawmakers loudly demanded removal of the art work, and threatened the national museum's funding.

    The National Portrait Gallery describes the exhibit, called "Hide/Seek," as "the first major museum exhibition to focus on sexual difference in the making of modern American portraiture." The exhibit also includes works by Robert Mapplethorpe, Andy Warhol, Nan Goldin and Keith Haring.

  • November 30, 2010

    As controversy continues over the Supreme Court's decision last term in Citizens United v. FEC, the high court agreed this week to hear another potentially high-impact campaign-finance case.

    Two challenges to an Arizona law that provides matching funds to publicly funded candidates will go before the court this term, The National Law Journal reports.

    "The Arizona law allows candidates to receive an initial outlay of taxpayer dollars, as well as additional public matching funds if they face a privately financed opponent or independent political group that out-raises or outspends them," the newspaper reports. "Opponents say the additional matching funds provide publicly financed candidates with an unfair advantage and interfere with the ability of privately backed candidates and groups to deliver their messages."

    Loyola Law School, Los Angeles, Professor Rick Hasen, who maintains Election Law Blog, blogged about the impact the case would have just a day before the Supreme Court announced it would take the case. He predicts that the court will strike down the Arizona public financing system, taking away "one of the only tools available to drafters of public financing measures to make such financing attractive to candidates."

    He continues:

    Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters. But rational politicians who are serious candidates will not opt into the public financing plan unless they think they will be able to run a competitive campaign under the public financing system. The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election. While an adverse ruling by the Supreme Court in McComish [v. Bennett] would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems.

    The full piece, posted on the Loyola Law School, Los Angeles, faculty blog, Summary Judgments, is available here.