JURIST Special Guest Columnists Sharon Bradford Franklin, senior counsel at the Constitution Project, and Karen Bloom, legal fellow with the Constitution Project, say that the US Supreme Court's decision in the upcoming Holder v. Humanitarian Law Project case challenging the constitutionality of laws prohibiting “material support” to terrorist groups may have serious implications for our First Amendment protections….

Would you consider any of the following to be criminal acts: advocating non-violent means of resolving conflicts, teaching English, educating a group about its humanitarian obligations, or providing legal services?

They might be, if the U.S. Supreme Court upholds the current form of federal laws prohibiting “material support” to terrorist groups. On February 23rd, the Court is scheduled to hear oral argument in Holder v. Humanitarian Law Project, a case which challenges the constitutionality of certain provisions of these laws. Under those provisions, it is a criminal act to provide services, training, expert advice or assistance, or personnel to groups the government has designated as “terrorist.”

Although the material support statutes provide an important counter-terrorism tool, the existing law is so broad that the government has essentially maintained that all acts in support of designated organizations further their terrorist ends and are impermissible. As such, even humanitarian organizations’ attempts to convince the designated groups to abandon violent tactics in pursuit of peace could be found to violate the laws.

In addition to being vague and over-broad, the “material support” laws also run afoul of the First Amendment because they restrict association rights and discriminate between types of speech. For example, providing religious materials (even if they are intended to further terrorist activity) is exempted from the prohibitions, but all provision of political aid (even if it is designed to counter-terrorism and promote peace) is prohibited.

The district court and Court of Appeals that heard this case on its way to the Supreme Court recognized the constitutional problems with the “material support” laws. Both courts ruled that parts of the “material support” laws are unconstitutional in certain contexts because they could cover activities protected by the First Amendment.

Nevertheless, the government maintains that the broad prohibition is necessary to its counter-terrorism efforts. Without question, cutting off support for terrorist activity is an essential part of the U.S.’s counter-terrorism strategy. Our government must have the tools needed to apprehend and punish those who work to facilitate and enable acts of terrorism, not just terrorist leaders. However, in providing the legal authority to prohibit and punish such conduct, it is essential that the law respect constitutional freedoms.

Moreover, criminalizing even attempts to discourage the terrorist activities of designated groups not only violates the Constitution, but is counter-productive. Outlawing the very advocacy that is most likely to neutralize the threat of groups designated as “terrorist” undermines, rather than advancing, our counter-terrorism objectives.

To address these issues, late last year the Constitution Project’s bipartisan Liberty and Security Committee proposed a series of reforms to the “material support” laws that would better tailor them to our counter-terrorism objectives and would ensure that they do not violate fundamental constitutional rights. The consensus recommendations of this Committee, which is composed of prominent policy experts, former government officials, and legal scholars from across the political spectrum, are contained in its report, Reforming the Material Support Laws: Constitutional Concerns Presented by Prohibitions on Material Support to “Terrorist Organizations.”

The Committee, among other proposals, called on Congress to (1) provide that pure speech may be punished only if it intended to further illegal conduct, and (2) exempt from the definition of “material support” humanitarian aid items such as medical services, civilian public health services and—if provided to noncombatants—food, water, clothing and shelter. Based upon this report, the Constitution Project filed an amicus brief in the Supreme Court in the Humanitarian Law Project case, arguing that the challenged provisions of the material support statute chill free speech and association in violation of the First Amendment.

The Committee’s proposals would go a long way toward making clear that counter-terrorism initiatives must not overstep constitutional restrictions and to ensure that the “material support” laws do not infringe on First Amendment rights. As the Constitution Project urged in its amicus brief, the Court should strike down the challenged provisions as unconstitutional. And hopefully Congress will soon revisit and revise the “material support” laws to address the remaining constitutional flaws not at issue in the Humanitarian Law Project case.

Sharon Bradford Franklin is senior counsel at the Constitution Project in Washington DC. Karen Bloom is a legal fellow with the Project.
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