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Supreme Court Weighs Free Speech Against Security Concerns

February 23, 2010 at 12:00 AM EDT
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The Supreme Court is considering whether the Patriot Act violates Americans' rights to free speech. Gwen Ifill talks with Marcia Coyle of the National Law Journal for more on what issues the justices are considering.

GWEN IFILL: The antiterrorism Patriot Act came under scrutiny today at the Supreme Court, as justices today took up a case that pits free speech against national security concerns.

Here to walk us through today’s arguments is “NewsHour” regular Marcia Coyle of “The National Law Journal.”

Welcome back, Marcia.

MARCIA COYLE, “The National Law Journal”: Thanks, Gwen.

GWEN IFILL: Describe what section of the Patriot Act we’re talking about that was at issue.


This is called the material support law. And what it does is, it prohibits anyone from providing material support to an organization or a group that has been designated a terrorist organization by our secretary of state.

The law defines material support in a number of ways. In this case, the Humanitarian Law Project, which is a California-based humanitarian group, brought a legal challenge to four prohibitions in the law. And those four prohibitions say you — you cannot provide training, expert advice or assistance, service or personnel to a designated terrorist organization.

GWEN IFILL: Which they were doing.

MARCIA COYLE: They wanted to — actually — actually, they wanted to. They have never been convicted of violating this law, which, by the way, carries a sentence of 15 years in prison, up to 15 years.

But they were concerned that some of their activities might be covered by this law. They wanted to provide education on health care, education on how to petition international groups like the United Nations to the Kurdistan Workers’ Party, which represents Kurds in Turkey.

GWEN IFILL: So, is the understanding behind this section of the law that, if you give money to a group like the Kurdistan Workers’ Party that they, if they engage in another wing of the party in terrorist activities, could easily funnel that money to someone else?

MARCIA COYLE: Well, money and, as they have challenged in this case, those other prohibitions on training and expert advice and assistance. They claim — the Project claims in the Supreme Court that those terms are so vague that they violate their First Amendment rights of speech and association.

GWEN IFILL: So, this group or any group for instance, how would this group be different from, say, giving money to al-Qaida if they wanted to do an education program?


Well, al-Qaida — and this actually came up in the oral arguments today. As the Project’s attorney, David Cole, pointed out, al-Qaida apparently doesn’t do any lawful activities. And, also, we’re at war with al-Qaida, and other laws may apply, like our laws on treason.

But here, in particular, in this case, this group, according to the Humanitarian Law Project, does engage in some lawful activities. And speech that tries to further lawful activities shouldn’t be prohibited, because of the First Amendment.

GWEN IFILL: So, these argument turned so much inside the courtroom today on speech and on what is terrorist — what is a terrorist group. Did it — how did it come out?


GWEN IFILL: How did it roll out?

MARCIA COYLE: There’s a real divide here. And it’s a fascinating case. And, also, it was a very difficult case, apparently, for a number of the justices.

Mr. Cole, who represents the Project, says there has to be a line between speech that furthers lawful activities, like petitioning the United Nations, and speech that furthers unlawful or terrorist activities.

And Justice Kennedy tried to get at, where — where do you draw the line here? And he said the — Mr. Cole said the government has to prove that the speaker, his — perhaps his clients, had the specific intent to further unlawful activity.

The government sees this completely different. Solicitor General Elena Kagan represented the Obama administration. And, like the Bush administration before it, they take the position that you really can’t separate assistance for lawful activities from assistance for unlawful activities when a terrorist organization is involved.

And she gave the example where she said, Hezbollah builds armies. Hezbollah also builds homes. Helping Hezbollah build homes helps Hezbollah build armies.

GWEN IFILL: So, there’s a question for the court about whether they — this is a chilling effect on free speech, which is constitutionally protected, or a chilling effect on a nation’s right, efforts to fight terrorism effectively?

MARCIA COYLE: Yes. This law has become a crucial tool for the government. There have been over 100 prosecutions under this particular law. So, the stakes are very high for the government.

And the government feels that it is not prohibiting speech. It says that groups like the Humanitarian Law Project can engage in independent advocacy or assistance to these other organizations, these terrorist organizations. It just cannot act with or in coordination with the terrorist organization.

Now, the government ran into a little trouble with its argument today, as the justices, as they did with Mr. Cole, tested, you know, how much speech or conduct would the government prohibit? When Solicitor General Kagan was asked if she stood by a position that the Bush administration took in the lower courts that even if a terrorist organization wanted to file an amicus brief in the — say, in the Supreme Court, maybe even in this case, and they hired a lawyer here in America to write the amicus brief, would that lawyer be violating the material support statute?

And she didn’t back away. She said that that lawyer’s action would be covered by the material support statute.

GWEN IFILL: Was it any more possible than it usually is to be able to divine where the justices were going based on their questions?

MARCIA COYLE: No, it really isn’t. I think justices had trouble with each argument today. And I’m not sure exactly where they’re going to be able to draw the line, if they’re going to draw the line.

GWEN IFILL: OK. Well, we will be watching when that happens.

As always, thank you very much, Marcia.

MARCIA COYLE: My pleasure, Gwen.