Civil Liberties Free Speech Freedom of Information Supreme Court

Supremes & Free Speech: The Patriot Act v. the First Amendment


Can the Patriot Act make it a crime for an American to advise a group
that has been designated a terrorist organization—if that advice pertains only to human rights and ways to seek peace?

It is this question that was heard before the U.S. Supreme Court on Tuesday.

The Americans challenging the restriction are the LA-based Humanitarian Law Project and its president, USC professor, Ralph Fertig, who has advised a Kurdish rebel group in Turkey.

This is from the AP:

The Supreme Court struggled Tuesday to balance the constitutional rights of humanitarian aid groups with the government’s efforts to combat terrorism.

The issue arose in a challenge by aid groups and individuals to parts of a key anti-terror law that bans “material support” to foreign terrorist organizations, even when that support consists of training and advice about entirely peaceful and legal activities.

The aid groups involved had trained a group in Turkey on how to bring human rights complaints to the United Nations and assisted them in peace negotiations, but suspended the activities when the U.S. designated the Turkish outfit a terrorist organization in 1997. They also wanted give similar help to a group in Sri Lanka, but it, too, was designated a terrorist organization by the U.S. in 1997.

Now keep in mind, we are not talking about groups like Al Quaeda that have been designated as our enemies, and thus are subject to a host of restrictions, Patriot Act or no Patriot Act.

The organization in question is a Kurdish rebel group called the PKK.

NPR’s Nina Totenberg does a good job of teasing out more of the issues.

And the LA Times David Savage has this post-hearing update.

A ruling is expected in June—with Kennedy again the swing vote. (Or maybe Roberts will also have a sensible moment. At least it is comforting to think so.)

PS: AND THE TWISTED LOGIC AWARD FOR TUESDAY’S HEARING GOES TO Antonin Scalia for this dandy quote: “It hasn’t criminalized speech. Most of that aid and assistance that is prohibited is not in the form of speech, but it happens to include speech as well.I think that is quite different from a law that is directed explicitly at speech.”

(Um, Antonin. Dude. That’s like saying if you advise the criminal to turn his or herself in, or if you similarly tell the criminal not to shoot the hostage, we can criminalize that speech as aiding and abetting, and such a statute in no way impinges on the First Amendment. That’s—-what’s the phrase I’m looking for?—oh, yeah: totally whacked.)


  • Almost ten years since the 9/11 attacks. The Patriot Act was born out of our own shock and awe. Bush with his laughable “quick-focused response” to the tragedy? Cheney with his “shadow government”? This country has been chasing its tail like some hyperactive dog for over nine years!

    The PKK? I believe these are Kurds who demand nothing more than autonomy after decades of brutality and genocide under Saddam Hussein. What right on God’s green Earth does any court in this Republic, Supreme or otherwise have to judge this group’s “designation”? Personally I’ve viewed the Patriot Act as just another threat to personal freedoms in this country. It was born out of a state of near panic and undue posturing by an Administration that was clearly not up to the task. Granted 9/11 was atrocious and sadly, a real coup for Al-Quaeda. Our response was pure stupidity rivaling any slapstick old Hollywood could have conceived. A war that had nothing to do with punishiung the perps, and new laws and restrictions that could have been rooted in Mein Kampf.

    Bush’s “line in the sand” was drawn in Wash DC but it wasn’t facing East, it faced West, and nine yrs after the fact his line has become a chasm.

  • So the Patriot Act is still in place? I thought the Obama Administration was going to let the sun set on this egregious act that violates the constitution. Looks like the Obama Administration took a page out of the George Bush playbook with this obvious violation of our constitutional right to privacy.

  • GJ, great comment.

    Captn Obvious, sure. If Obama tears up the patriot act, then you’re in here telling us he’s soft on terror. If Obama is the same warmonger that bush was, then why were they mocking Obama left and right at that CPAC convention for Obama saying he’s going to apply the rule of law to fighting terrorism? The latter, btw, a direct affront to the patriot act, regardless of its mere existence. Face it, Obama’s playing the right like a fiddle on terrorism. He’s acting, they’re reacting. When are you going to get it? He already rope a doped Hillary Clinton, John McCain, and in the days leading up to the election, Sarah Palin. He’s not Jimmy Carter. The Republicans have better come up with a better plan for ’12 than just hoping Obama forgets he’s as crafty and effective as any politician who’s ever won the white house.

  • I’ll note that contra the chest beating a few weeks ago after the citizens united decision, conservatives are often in favor of limiting free speech. This is a great example.

    Captain Obvious, the Obama administration has been poor on some of these civil liberties issues. I would love it if Tea Partiers who wrap themselves in the constitution and constantly talk about their fear of government would join with progressives to put pressure on Washington to protect the civil liberties of Americans.

  • The devil’s in the details. If an American was advising Osama Bin Laden on how to get a good deal on a car, that American would be, literally, a traitor, as specified directly in the Constitution.

    “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

    I have no sympathy for those who brought the suit – they were aiding two vicious terrorist organizations (and the particular ones in question were quite vicious, especially the one in Sri Lanka). Their aid (filing human rights complaints) was clearly directly beneficial to the cause these terrorists were murdering people over, so the attempt to characterize it as peaceful is nonsense.

    The only question is whether the law threatens an important fundamental right. I think it does not – if you can be convicted for giving money to these people, you should be able to be convicted for aiding them by giving knowledge to them (unless you are acting as their lawyer within the US judicial system) – both acts aid a malefactor.

  • John Moore, you’re totally dodging my point, which is that sometimes conservatives believe in less free speech than liberals. Of course the devil is in the details.

  • Mavis, I wasn’t even addressing your point.

    Now I will. Both sides are guilty of trying to suppress the speech they don’t like. However, in the modern age, liberals are way ahead of conservatives in suppressing speech (take college speech codes, for example).

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