On Monday, the Supreme Court handed down a significant ruling in favor
of the government as it continues to try to prosecute
terrorists and their abettors. Human rights groups are less than happy. As
veteran Supreme Court-covering journalist Lyle Denniston explains,
The Court ruled, by a 6-3 vote, that it does not violate the Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group's peaceful or humanitarian actions. But the Court added a significant qualifier: such activity may be banned only if it is coordinated with or controlled by the overseas terrorist group.So what are the consequences and political ramifications?
Revolutionary Was This Ruling? Lyle Denniston evaluates the decision: "The fact
Justice John Paul Stevens, who has written some of the Court's
strongest opinions rejecting government claims to power over terrorism,
joined without quibble in the Roberts opinion supported the notion that
it was narrow." On the other hand, "the fact that the Court's other
liberal-leaning Justices filed a strongly worded dissent," with Justice
Breyer actually choosing to recite it in court, "supported the appearance that the Court had gone quite far to allow criminalizing of speech activity in this realm of the law." Denniston notes one aspect of the ruling that might cheer some human rights groups: "no kind of speech activity can be punished under the law, according to
the opinion, unless the speaker knows the foreign group being supported
is a terrorist organization on the government's banned list."
- A Big Win for the Government--And Elena Kagan, says The American Prospect's Adam Serwer. The government gets to keep a law that "has a 91% conviction rate in terrorism cases in civilian court," while Obama's Supreme Court nominee Elena Kagan is now "heading into her hearings on Monday with a big success under her belt," since it was she who argued the government's position before the Supreme Court. "The fact that this victory was won on the battlefield of national security law is no less significant, given the efforts to paint Kagan as soft on terrorism and a secret proponent of Taliban-style Sharia law." Serwer also points out that liberal Justice Stevens's surprise defection, siding with the conservative majority, suggests that Kagan really is like the beloved Stevens, whom she would be replacing--"[j]ust not in the way [liberals] wanted her to be."
- A Loss for Human Rights Groups Progressive Marcy Wheeler points out that "at issue was whether human rights groups could work with organizations on the Foreign Terrorist Organization list in pursuit of humanitarian or non-violent goals." Thus, she thinks the decision has "absurd implications," and quotes Jimmy Carter's amicus brief as founder of the Carter Center:
We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The .... [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. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.
- Less for Free Speech Advocates to Worry Over than They Think UCLA law professor Eugene Volokh is glad the Supreme Court continued to defend the relevance of the First Amendment in the case of "content-based speech restrictions"; those defending speech restrictions, which include, for example, outlawing websites that help criminals by "describ[ing] how a crime can be easily committed ... could--and often do--argue that there should be no First Amendment scrutiny ... because the law is a generally applicable law that applies to a wide range of conduct that happens to include speech." The Supreme Court rejected this argument--"quite rightly so," Volokh thinks. While the court did ultimately decide the government could prosecute speech aiding known terrorist groups, Volokh thinks it's "not very likely" that "other content-based speech restrictions will be more easily upheld in the future." The court was very careful to keep the ruling narrow. There's "danger," he acknowledges, of later restrictions, but the court's trying hard to cut down on wiggle-room.