President Obama and Eric Holder

The criminalization of speech since 9/11

Prosecution for "material support" has expanded under Obama. Where does it leave the First Amendment?


Justin Elliott
September 10, 2011 5:01PM (UTC)

Last week, a 24-year-old Virginia man named Jubair Ahmad was arrested and charged with providing "material support" to an officially designated terrorist organization, the Pakistani group Lashkar-e-Taiba (LeT).

But Ahmad is not accused of sending money or weapons to LeT, or scouting out targets for the group. What had Ahmad allegedly done? Uploaded a "propaganda video to YouTube on behalf of LeT" that showed "so-called jihadi martyrs and armored trucks exploding after having been hit by improvised explosive devices," according to the Justice Department. Ahmad allegedly had spoken to the son of an LeT figure about making the video.

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The case is an example of prosecutors' aggressive use, in the decade after Sept. 11, of the preexisting law that bars providing "material support" to officially designated terrorist groups. In a landmark case last year, the Supreme Court endorsed the government's broad interpretation of the material-support law in a way that critics say criminalizes speech.

The expanded use of the material-support law is an important part of the legacy of 9/11 and the legal regime erected in response to the attacks. To learn more about the history and use of the material-support statute, I spoke with Hina Shamsi, the director of  the National Security Project at the American Civil Liberties Union.

What does the material-support law say, exactly?

It gives the government the power to designate non-U.S. groups as foreign terrorist organizations based on very broad criteria. That includes whether the group has used or threatened to use a weapon against personal property; whether the group's activities undermine our national defense, foreign relations or economic interests. What is most problematic about the law, though, is "material support" has been interpreted so broadly. It is used regardless of whether the provider has the intent to support terrorism, or whether any specific act of terrorism has taken place or is being planned, and even to include pure speech and advocacy.

How and how much has this statute been used in the decade since Sept. 11?

The material-support law is the statute prosecutors most use in suspected terrorism cases, including not just in our federal courts but also in military commissions. It is now the most far-reaching statute prosecutors use in suspected terrorism cases. Its use, and its use specifically in this Lashkar-e-Taiba case, shows just how the grave the implications are for Americans' free speech rights. That's how it is that what appears to be purely First Amendment-protected activity here is being criminalized.The government has a legitimate and compelling interest in protecting the nation from terrorism and in stopping material support that actually furthers unlawful and violent acts.

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Is this a post-9/11 law?

No, the law existed pre-9/11. But its broad interpretation both by the government and the courts has expanded dramatically. The Supreme Court held in a 1969 case called Brandenburg v. Ohio that even advocacy of violence can be criminalized only when it is intended to result in imminent criminal conduct and if it is likely to produce imminent criminal conduct. That reflects the importance of First Amendment protections to our democracy -- that speech the government may disagree with is nevertheless part of the marketplace of ideas, the recognition that advocacy and speech itself can serve as a safety valve for the expression of dissent, and the fundamental fact that the government cannot and should not criminalize beliefs and ideology, although it can and should criminalize violent conduct.

But in a Supreme Court case last year which has emboldened prosecutors, the court held for the first time ever that the government can in fact criminalize speech, including speech that advocates only lawful activity, in part on the theory that speech might legitimize a terrorist group. This is the case of Holder v. Humanitarian Law Project. The broader implication of this ruling is that it thwarts the efforts of human rights and humanitarian groups to persuade violent actors to renounce violence or cease human rights abuses. As a result, a law that is aimed at putting an end to terrorism, actually threatens peaceful advocacy groups.

What were the facts of that Holder v. Humanitarian Law Project case?

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A human rights organization and nonprofit groups wanted to assist the Kurdistan Workers' Party in Turkey and the Liberation Tigers of Tamil Eelam in Sri Lanka by teaching them how to bring human rights claims in the United Nations. The plaintiffs wanted to teach international law and nonviolent means to promote peace. After the U.S. designated the Kurdistan Workers' Party and the LTTE as foreign terrorist organizations, that kind of advocacy from human rights and other nonprofit groups became a crime, according to the government. What the plaintiffs went to court to say was, 'We would like to help promote peaceful resolutions.' The court came back and said, doing so in connection with a foreign terrorist organization would violate the material-support law.

I wrote earlier this week about a public relations campaign on behalf of the Iranian group the Mujahedin-e Khalq (MEK), also a designated foreign terrorist organization. Some of the people involved in that debate argue the material support is being applied in a selective, politicized way, depending on the type of supporters a given terrorist group has. What do you think?

That certainly appears to be happening now, and that's part of the danger of criminalizing speech and advocacy in this way. It allows the government to pick and choose whose speech and whose advocacy it favors.

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Is this all a settled matter of law at this point, or is anyone planning any challenges?

We're gravely concerned about the consequences of the Humanitarian Law Project decision, and we are following what's happening and looking to see what challenges might be brought when the government moves to criminalize pure speech. Especially I think when it seeks to do so with respect to domestic organizations.


Justin Elliott

Justin Elliott is a reporter for ProPublica. You can follow him on Twitter @ElliottJustin

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