June 27, 2010

“Material Support” and Freedom of Speech



(Updated below)
As Hans-Hermann Hoppe has pointed out, state courts cannot be counted upon to uphold justice for the simple reason that they’re state courts. In other words, as agents of the state, they tend to rule in favor of the state and against the individual. In the same way, a court run by the Smiths would tend to rule in favor of the Smiths and against the Joneses, the Johnsons, etc. (“The Myth of National Defense,” Mises.org, 24 October 2003).

This past Monday, the US Supreme Court provided yet more evidence for Hoppe’s thesis, as it ruled that the First Amendment doesn’t actually mean what everyone with a basic understanding of the English language knows it means. In a 6-3 decision, the Court upheld a federal statute which makes it a crime to provide “material support” to terrorist groups, even when such support is undertaken to “facilitate only the lawful, nonviolent purposes of those groups.” The statute defines material support so broadly as to include, not just tangible goods like weapons and money, but also such intangible assistance as “training,” “expert advice or assistance,” “service,” and “personnel” (Holder, Attorney General, et al. v. Humanitarian Law Project et al. , No. 08-1498, 21 June 2010).

One of the plaintiffs in the case, the Humanitarian Law Project, had been teaching members of the PKK (Kurdistan Workers’ Party) “how to use humanitarian and international law to peacefully resolve disputes.” Other plaintiffs had been “offer[ing] their legal expertise in negotiating peace agreements between the LTTE [Tamil Tigers] and the Sri Lankan government.” According to the statute in question, individuals providing such material support can be imprisoned for as many as fifteen years, and now the Supreme Court has ruled that this statute is perfectly constitutional.

Writing the majority opinion, Chief Justice John Roberts makes a somewhat erudite and completely ridiculous argument. He claims that the statute does not ban “pure political speech.” For “plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights, and international law.” What the statute bans, Roberts continues, is “material support,” which “most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech.”

So, to repeat, according to Justice Roberts, Americans don’t have the right to engage in all types of speech. We do, it turns out, have the right to engage in “pure political speech.” Oh lucky us. But there are certain types of speech, there’s a “narrow category of speech,” that we don’t have the right to engage in.

A strange argument, one that, it should go without saying, blatantly contradicts the First Amendment, which states that “Congress shall make no law… abridging the freedom of speech.” Notice that the Amendment doesn’t say that “Congress shall make no law abridging the freedom of pure political speech” or that “Congress shall make no law abridging the freedom of all but a narrow category of speech.” No, the Amendment states that “Congress shall make no law… abridging the freedom of speech.”

All of which means that American human rights workers should have the freedom to teach others “how to use humanitarian and international law to peacefully resolve disputes” and to provide them with “legal expertise in negotiating peace agreements.” Again: “Congress shall make no law… abridging the freedom of speech.”

But, according to Roberts, we shouldn’t let inconvenient things like the First Amendment prevent us from determining whether something is constitutional. There are other issues to consider. For instance, he writes that providing material support “importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.” Of course, providing material support, teaching terrorists groups “how to use humanitarian and international law to peacefully resolve disputes,” can also help these groups to “use humanitarian and international law to peacefully resolve disputes,” which in turn can reduce the number of terrorist attacks.

Roberts further writes that terrorist groups could use such training “as part of a broader strategy to promote terrorism. The PKK could, for example, pursue peaceful negotiation as a means of buying time to recover from short-term setbacks, lulling opponents into complacency, and ultimately preparing for renewed attacks.” True. But then again, and stop me if you’ve heard this before, such training could also help these groups “use humanitarian and international law to peacefully resolve disputes”!!!

Roberts continues rambling on in this manner, offering up more, equally absurd, arguments, none of which, even if successful, would matter. Again, there’s that whole freedom of speech thing—which, of course, he insists Congress does not have the right to violate, even as he defends Congress’ right to violate it. War is Peace, Freedom is Slavery, Ignorance is Strength. Prohibiting the Freedom of Speech is Upholding the Freedom of Speech. Got it?


Update, 7/5/10:A few worthwhile articles on the topic: Scott Atran and Robert Axelrod, Why We Talk to Terrorists;” Andy Carl, Ending wars peacefully just got harder;” Kay Guinane, The Supreme Court: Working for Peace Is a Prosecutable Offense.”

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