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Court's Dual Standards on Free Speech

By Nat Parry
June 28, 2010

A majority of justices on the U.S. Supreme Court seems to believe in free speech for corporations when it comes to influencing elections, but not so much for actual people trying to end wars. 

Five months after the Supreme Court ruled in Citizens United v. Federal Election Commission that the First Amendment guarantees corporations the right to spend unlimited amounts of money in political campaigns, the Court issued a ruling making the First Amendment less sacrosanct when it comes to private citizens advocating for peaceful conflict resolution.

In a 6-3 ruling on June 21, the Court upheld a federal law that criminalizes giving “material support,” including providing “expert advice,” to groups that have been designated by the State Department as terrorist organizations.

Human rights groups had claimed the law’s vague language would inhibit their work by preventing education projects and limiting their ability in offering advice on how to resolve conflicts and work within the political process.

A group of individuals and nonprofit organizations including the Los Angeles-based Humanitarian Law Project had brought the case to challenge the constitutionality of the law on First Amendment grounds.

An ACLU friend-of-the-court briefing was signed by organizations such as the Carter Center, Christian Peacemaker Teams, Human Rights Watch, International Crisis Group, and the Institute for Conflict Analysis and Resolution at George Mason University.

The groups – which work to resolve conflicts, promote human rights and provide aid and disaster relief in conflict zones – argued that the broad application of the material support provision violated their rights to freedom of speech and association, hindering their work by criminalizing activities such as providing legal and political training to the Kurdistan Workers’ Party and the Tamil Tigers of Sri Lanka.

The case sought to apply the judicial standard of “strict scrutiny”– favoring a fundamental constitutional right over an asserted government interest – but the Supreme Court disagreed, upholding the broad application of the “material support” provision and using rationales for the law’s virtues that seemed to go well beyond the language of the First Amendment.

The Court held that the law’s regulation of speech must be subject to a demanding level of scrutiny, but that the government’s sweeping restrictions were justified by the interest of combating terrorism.

Essentially, the Court agreed with the plaintiffs that the statute does criminalize speech on the basis of its content, but decided that the government’s interest in isolating groups on the State Department’s “foreign terrorist organization” (FTO) list was sufficiently great to overcome the heightened level of scrutiny.

“This is one of a very few times time that the Supreme Court has upheld a criminal prohibition of speech under strict scrutiny,” said the Center for Constitutional Rights, “and the first time it has permitted the government to make it a crime to advocate lawful, nonviolent activity.” 

As Chief Justice John Roberts wrote in the majority opinion, any form of “support” given to these FTOs, whether money, legal aid or political advice, “frees up other resources within the organization that may be put to violent ends.”

Roberts further said conflict resolution and humanitarian work “helps lend legitimacy to foreign terrorist groups – legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds – all of which facilitate more terrorist attacks.”

Basically, the Court is saying that the government has a defensible interest in criminalizing conflict resolution mediators who advise militant organizations to channel their grievances into peaceful means because that somehow provides these groups a degree of “legitimacy” and may free up resources for terrorist activities – even if the law doesn’t stand up to strict constitutional standards.

So, rather than adhering to the language and intent of the First Amendment – which states that “Congress shall make no law ... abridging the freedom of speech” – the Court took it upon itself to judge the worthiness of offering “expert advice” to FTOs.

Debatable Logic

Some analysts found this an unusual line of legal reasoning for the U.S. Supreme Court, which is mandated with determining the constitutionality of laws, not deciding the pros and cons of speaking to unsavory organizations.

While the State Department might adopt policies seeking to isolate organizations that it deems “terrorist,” it is a new role for the Supreme Court to be weighing in on the matter so vocally.

Beyond the dubious legal reasoning, the political logic in this decision is also questionable. At the very least, it is a matter of debate whether engaging with organizations in order to promote dialog has the effect of offering them “legitimacy,” or whether such engagement is vital in resolving protracted conflicts and curbing the use of violence for political ends.

This is essentially the point that Jimmy Carter made after the Court’s ruling.

“We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups,” said the former president, who as founder of the Carter Center works to promote free elections and peace-building efforts around the world.

“The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence,” he said.

By criminalizing engagement with such organizations and making it more difficult to train them in peaceful means of political change, the government may actually be ensuring that violence remains their only outlet in expressing their grievances. In this way, these policies may do more to foment terrorist activity than prevent it.

The List

There is also the question of how, precisely, the government determines whether a group should be classified as a “foreign terrorist organization.” The State Department claims that the FTO designations “play a critical role in our fight against terrorism” and are based on “an exhaustive interagency effort.”

The list of FTOs is compiled every two years and is currently comprised of 45 organizations, from countries all over the world.

While the government may take steps to ensure that the organizations it identifies as terrorists meet certain objective criteria, in some cases there may be other foreign policy considerations at play when making the determination.

In 2002, for instance, the Bush administration placed the Islamic Movement of Uzbekistan on the list while it was hatching a bilateral agreement with the authoritarian government of Uzbek president Islam Karimov.

It was believed at the time that the designation was made as a concession to Karimov in order to secure Uzbekistan’s cooperation in the “war on terror,” specifically by hosting a U.S. air base to support NATO operations in neighboring Afghanistan.

Just as there are questions over why the U.S. government may choose to designate a group as an FTO, there are also questions over why a group may be omitted from the list. In the 1990s, for example, the Kosovo Liberation Army was listed by the U.S. government as a terrorist organization until 1998.

The State Department de-listed the KLA that year, as the U.S. was attempting to increase pressure on Yugoslav president Slobodan Milosevic, and the Clinton administration lobbied France to do the same. From then on, the United States maintained diplomatic relations with the KLA’s leaders and spoke of them as freedom fighters justly resisting oppression.

So, while there may be organizations on the State Department’s list that deserve the “terrorist” label, there are also likely many omissions. That's especially true for groups that have received help from the U.S. government, perhaps most famously the Nicaraguan contras who in the 1980s engaged in attacks on civilians as part of the Reagan administration’s effort to destabilize Nicaragua’s leftist Sandinista government, but the contras were deemed freedom fighters, not terrorists.

Besides the question of political or ideological favoritism, the fact that the list is only compiled every two years means that there will be a gap, since so many terrorist groups seem to emerge overnight. Indeed, often times, violent acts such as car bombings are claimed by previously unheard of organizations.

In this sense, there is an inherently arbitrary nature to both the State Department FTO list and the law against providing “expert advice” to FTOs.

Now, with the Supreme Court’s ruling, conflict mediators may find themselves in the difficult position of being allowed to speak to one side of a conflict but not the other, simply based on the State Department’s designations.

First Amendment Exemptions

Regardless of the politics behind the Court's decision, the ruling is widely seen to be a serious blow to First Amendment rights of freedom of speech.

As Justice Stephen Breyer pointed out in a dissenting opinion, “The plaintiffs, all United States citizens or associations, now seek an injunction and declaration providing that, without violating the statute, they can (1) ‘train members of [the Kurdistan Workers Party] on how to use humanitarian and international law to peacefully resolve disputes'; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey'; (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief'; and (4) ‘engage in political advocacy on behalf of Tamils who live in Sri Lanka.’”

“All these actions,” Breyer continued, “are of a kind that the First Amendment ordinarily protects.”

He continued, “In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in these activities. All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends.

“Even the subjects the plaintiffs wish to teach - using international law to resolve disputes peacefully or petitioning the United Nations, for instance - concern political speech.”

The “material support” law, Breyer said, “denies First Amendment protection to the peaceful teaching of international human rights law,” on the grounds that it might enable terrorists to conduct sham negotiations.

David Cole, who argued the plaintiffs’ case at the Supreme Court, worries that even Jimmy Carter could now be prosecuted for his peacemaking efforts. In monitoring the elections in Lebanon and Palestine, Carter has met with groups such as Hamas and Hezbollah to encourage fair elections, an activity now judged to be a crime by the nation’s highest court.

“The Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists,” Cole said. “In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime. That is wrong.”

For his part, Chief Justice Roberts insisted that the Supreme Court ruling does not inhibit freedom of speech, just the circumstances in which that speech can occur when a federal law has determined an important public interest (i.e. thwarting terrorism) could be affected to the contrary.

While “plaintiffs may say anything they wish” on their own behalf, Roberts said, they simply cannot speak directly with FTOs.

Citizens United

However, in a Jan. 21 decision, the Court tilted in the opposite direction, ruling that a federal law that sought what Congress believed to be a public good -- limiting corporate funding that was designed to influence the outcome of U.S. elections -- was an unconstitutional violation of the First Amendment.

In Citizens United v. Federal Election Commission, the Court used a broad free-speech rationale to strike down a federal ban on corporations paying for advertisements that advocate for or against political candidates.

In a far-reaching ruling, the Supreme Court essentially decided on two fundamental matters: one, that corporations have the same constitutional rights as citizens, and two, that spending unlimited amounts of money to influence elections is considered protected speech under the First Amendment.

Not only did the Court overturn a major federal law but the justices went against the views of the American people. Large majorities agree that corporations already have too much power in the United States.

Many Americans also recognize that the free speech rights of average citizens pale in comparison to the giant megaphone that can be purchased by corporations with deep pockets. The Citizens United ruling inevitably will give big corporations even more influence than they already have.

A recent poll found broad agreement on these questions, with 85 percent of voters saying that corporations have too much influence over the political system, and 93 percent say that average citizens have too little influence.

Furthermore, according to the poll, 95 percent of voters believe that “Corporations spend money on politics mainly to buy influence in government and elect people who are favorable to their financial interests.”

With so many Americans fundamentally disagreeing with the Supreme Court on this matter, the Citizens United decision has touched off a grassroots campaign to nullify the ruling through the adoption of a constitutional amendment that would strip corporations of constitutional rights by reversing the doctrine of “corporate personhood” which has been in place since the 1886 case Santa Clara County v. Southern Pacific Railroad.

But a Facebook group, which formed in opposition to the ruling, quickly learned the limitations of Corporate America’s commitment to free speech. The corporate-funded organization Citizens United, which had challenged the FEC’s limits on corporate spending on elections, sent a threatening letter to a grassroots organization called Citizens United Against Citizens United over trademark infringement.

Rather than attempt to fight Citizens United in the courts, the grassroots group meekly agreed to change its name.

Free Speech Schizophrenia?

The American public’s remarkably broad agreement that corporations wield too much influence over the political system – cutting across party lines and ideology – stands in marked contrast to the majority of Supreme Court justices.

The conservative-dominated Court has decided that the Founders intended the Bill of Rights to apply equally to average citizens and to large corporations, and that there is no qualitative difference between speaking one’s mind on a street corner and spending unlimited amounts of money to influence an election.

But while applying this broad interpretation of the First Amendment to corporations, the Court has now, in the Humanitarian Law Project case, applied a much narrower view of the same First Amendment as it pertains to private citizens.

On the surface it may seem that the Supreme Court is acting rather schizophrenically – vigorously defending the First Amendment and expanding its protections in one case, while maintaining that First Amendment protections have severe limitations when it comes to the government’s “war on terrorism” in the other – but this overlooks an important similarity in the two decisions.

In both cases, the Court has effectively curtailed the ability of U.S. citizens to engage in political discourse. In Citizens United, by lifting the limits that corporations may spend on campaigns, the Court diminished the impact of citizens’ free speech activities, such as letter writing campaigns and political demonstrations.

After all, with corporations free to spend as much as they wish to influence elections, traditional free speech activities of average citizens simply cannot compete on an equal playing field.

Similarly, by limiting the ability of citizens to engage in conflict resolution activities, the Supreme Court has ensured that the Executive Branch has a near monopoly on diplomacy with the State Department able to criminalize conversations of negotiators simply by labeling a foreign organization as “terrorist.”

In effect, both cases curtail the ability of private citizens to engage in the political process. In that way, perhaps the Supreme Court is not acting as inconsistently as it may seem on the surface.

Nat Parry is the co-author of Neck Deep: The Disastrous Presidency of George W. Bush.

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