Do people have a First Amendment right to give terrorist groups advice on how to conduct business, even when the subject is peaceful, lawful activity? Anti-terrorism laws made that kind of assistance illegal, calling it material support for terrorism itself. This morning, the Supreme Court upheld the law in a 6-3 decision that stopped an aid organization from consulting with the PKK:
The Supreme Court has upheld a federal law that bars “material support” to foreign terrorist organizations, rejecting a free speech challenge from humanitarian aid groups.
The court ruled 6-3 Monday that the government may prohibit all forms of aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities.
Material support intended even for benign purposes can help a terrorist group in other ways, Chief Justice John Roberts said in his majority opinion.
“Such support frees up other resources within the organization that may be put to violent ends,” Roberts said.
Hamas would be one such example. It conducts terrorist attacks against Israel with one part of its organization while running charitable endeavors with another. Fundraising for Hamas to support its outreach programs would allow Hamas to use the money elsewhere, or even if the specific money was applied to the charitable work, it would allow Hamas to not have to dip into the charity funds for its terrorist activities.
That has long been accepted legal theory in the US, but until now it hasn’t been applied to non-monetary support. It’s a murkier question, as “advice” is not a fungible commodity. Assistance in building a proposal to the UN doesn’t translate into terrorist activity as easily as money does, mainly because it’s specific to the task. However, the Supreme Court has wisely decided that the basic issue is one of terrorist intent on the organization as a whole, and not the subordinate intentions of its internal agencies. Supporting a designated terrorist group in anything is in essence material support for terrorism.
Justice Stephen Breyer, the AP reports, read his dissent aloud in a show of frustration with the majority opinion, rather than just release the written brief. Breyer was joined by Sonia Sotomayor and Ruth Bader Ginsburg, in what would be no great shock. The report fails to mention that John Paul Stevens, soon to retire from the Court, joined the conservative majority on this question. That seems rather newsworthy, and the AP’s failure to mention it seems equally newsworthy.
Update: Jacob Sollum disagrees at Reason.