JEFFREY BROWN: And we turn to the Supreme Court, which today upheld a federal law that bans providing so-called material support to terrorist organizations. The justices ruled 6-3 against human rights groups’ claims that provisions in the post-9/11 Patriot Act violated their free speech rights.
As always, Marcia Coyle of “The National Law Journal” was at the court, and joins us now.
MARCIA COYLE, “The National Law Journal”: Thanks, Jeff.
JEFFREY BROWN: Some background first. So, this was a law that was part of the post-9/11 Patriot Act, but embraced by the Obama administration?
MARCIA COYLE: That’s correct. And it makes a crime out of providing material support to organizations that are designated terrorist organizations by our Department of State.
Material support is defined in the statute to include knowingly providing expert assistance, personnel, training, and service to a terrorist organization.
JEFFREY BROWN: So, it’s — it’s laid out the statute, but the definition is what was at stake here today.
MARCIA COYLE: Absolutely, and what that definition meant in terms of free speech under the First Amendment.
JEFFREY BROWN: All right, just to continue the context of this particular case, so, this involved humanitarian — human rights groups.
MARCIA COYLE: Yes.
JEFFREY BROWN: What did they want to do and with what groups?
MARCIA COYLE: Back in 1998, two U.S. citizens and about six human rights organizations challenged the law because they were afraid they would be criminally prosecuted for the kind of work they did and wanted to do.
They wanted to provide education and assistance in human rights advocacy, as well as teaching certain organizations peaceful dispute resolution. In particular, in this case, they were looking at the Kurdistan Workers’ Party in Turkey and a group called the Tamil Tigers in Sri Lanka, both of which had been designated as foreign terrorist organizations.
JEFFREY BROWN: All right, but the Supreme Court said no by 6-3.
MARCIA COYLE: That’s right.
JEFFREY BROWN: It was Justice — Chief Justice Roberts writing…
MARCIA COYLE: Chief Justice Roberts wrote the majority opinion.
And, essentially, he first rejected what he said were extreme positions by both the government and by the human rights organizations. The government had argued there was no speech involved here; they were just punishing conduct. And the court said, the majority said, that’s not true. There is speech involved here. The First Amendment applies.
The human rights organizations had said you’re banning all pure political speech. And the court said no. One of the ways the court tried to narrow what it did today was to say, if you want to advocate independently, nothing in this law prevents you from doing that.
But this law prohibits you from providing material support in coordination with or under the control of the foreign terrorist organization. After getting that out of the way, the chief justice then addressed the First Amendment implications, and basically accepted the government’s assertions here that this law, one, if you provide material support, even benign support that would further nonviolent goals, it could free up resources — other resources that could be used for terrorist or violent activities.
Also, he accepted the government’s assertion that providing this type of support, even if benign, legitimizes these organizations. It helps them recruit others to engage in terrorism. And, finally, he said that it also strains our relations with other countries.
For example, Turkey right now is involved in violent confrontations with the Kurds. And Turkey is a member of NATO, an ally, and certainly he said Turkey wouldn’t appreciate the fact that U.S. citizens or organizations were providing material support to these groups.
JEFFREY BROWN: Well, I remember when this case was argued. And the issue then, as you pointed out at the time, was, where is the line…
MARCIA COYLE: Yes.
JEFFREY BROWN: … right, in deciding what is meant by material support?
The chief justice clearly found that line. He didn’t have a problem finding the line, actually.
MARCIA COYLE: No. And he said — and he repeated this several times throughout the opinion, his opinion, that you can still independently speak and act on behalf of these organizations. You just can’t act in coordination with them or under their control.
JEFFREY BROWN: But strong dissent came from Justice Breyer.
MARCIA COYLE: Justice Breyer actually read parts of his dissent from the bench today. And that happens. It’s not rare, but it happens infrequently. And, generally…
JEFFREY BROWN: But it happens when they want to make a statement?
MARCIA COYLE: Absolutely. It shows that they’re concerned and they feel strongly about the case.
He was joined in dissent by Justices Ginsburg and Justice Sotomayor. He felt that the majority had not really put the government to the test as to whether this law as applied violated the First — the First Amendment speech rights of these groups.
He said the court just accepted the government’s general assertions. The First Amendment puts a very heavy burden on the government — it’s what we call strict scrutiny — to show that it has a compelling interest — and he accepted that national security is a compelling interest — but also to show that the means the government chooses, the material support law, will — is narrowly tailored to reach that compelling interest. And he felt it didn’t.
JEFFREY BROWN: One interesting sidelight before I let you go, this was a case argued for the Obama administration by Elena Kagan.
MARCIA COYLE: Yes.
JEFFREY BROWN: And now it looks like it was the more liberal — it was the more liberal justices who voted against it.
MARCIA COYLE: That’s right. What made the difference here really, I think — it didn’t make a difference in terms of vote count, but what’s interesting is that Justice Stevens joined the majority. And he is considered the most liberal member.
And I think what it shows is that he felt that the court did find a line to narrow the opinion, and also did make the government justify the law under the First Amendment’s toughest scrutiny.
JEFFREY BROWN: All right, Marcia Coyle, “National Law Journal,” thanks again.
MARCIA COYLE: My pleasure, Jeff.