Nexus: Chapman's Journal of Law and Public Policy

How Far is Too Far and Where Does It Stop: The First Amendment Debate as to Whether the Government Has the Authority to Order a Blanket Ban on the US Citizen’s Peaceful Communication with Designated Foreign Terrorists

For the first time since its enactment, the US Supreme Court is considering the constitutionality of the anti-terror statute that has been in place since 1996, revamped after the 9/11 attack, and had been modified a number of times since then. This statute, what the federal government calls a ”vital weapon” in the US fight against terror, is a part of the USA Patriot Act. This measure had not been well known to general public but we are becoming more familiar with it as the government invokes it for virtually all its terrorism prosecutions.

The gist of the statute is that any “material support” to foreign terrorist organizations is banned, regardless of the purpose, whether peaceful or violent. In addition to penalizing financial support to the FBI's blacklisted groups even for peaceful means – which by itself beckons substantial criticism – the real controversy centers around the ban on communication that an individual may engage with these groups, which touches upon the crux of the First Amendment’s guaranteed freedom of speech.

The First Amendment constitutionality question arises because the statutory language is overbroad and does not define exactly what type of communication and discussion with these groups would be sanctioned under the statute. The banned “material support” includes “training,” “expert advice or assistance,” “personnel” or “services.” The Congress’ main rationale behind the communication ban is to preclude any expert advice and intellectual support that may be provided to these groups, whether it would be legal or what have you, that would further their violent terrorist objectives. But why the blanket ban? It was intentionally implemented by the Congress as it decided that if an individual helps a foreign organization in legal activities, one also helps the foreign terrorist organization in unlawful activities. The effect of the over broad language is that nearly all interactions that an individual may have with the blacklisted organizations – which might involve teaching, advocating peaceful activities of those groups, and even interviewing them for investigative/journalism purposes relating to their objectives – lead to jail time. In addition to being banned from proactively and directly providing humanitarian aid to the civilians in the areas controlled by terrorist organizations that are either hit by natural disaster or war-torn, a mere advising of the organization on how to obtain humanitarian efforts through other means to help those civilians constitutes a felony. Even the urging of these groups to seek peaceful solutions and aiding them in conflict resolution are considered criminal activities under the statute.

So what type of communication is allowed under this measure that seemingly places an over-inclusive prohibition of virtually any type of interaction with the designated terrorist groups? Solicitor General Kagan answer is as overbroad and dubious as the statute she defends. She says that under the anti-terror statute, US citizens are free to meet with and even join any terrorist organization. They are free to discuss issues with such groups, but “the discussion must stop when you get to the point of giving valuable advice.”

The human rights advocates who are challenging the constitutionality of this statute is urging the US Supreme Court to hold that Americans cannot be held liable for speech made in coordination or association with a blacklisted group if the speaker does not intend to further the unlawful, violent ends of the group.