SCOTUS Wrong: Money is NOT Speech

The Supreme Court Decision, upholding key provisions of the misnamed PATRIOT Act, is an affront to the First Amendment.

Forty-three years ago, when the nation lived in fear of Communist sympathizers and saboteurs, the Supreme Court said that even the need for national defense could not reduce the First Amendment rights of those associating with American Communists.

On Monday, in the first case since the Sept. 11, 2001, attacks to test free speech against the demands of national security in the age of terrorism, the ideals of an earlier time were eroded and free speech lost. By preserving an extremely vague prohibition on aiding and associating with terrorist groups, the court reduced the First Amendment rights of American citizens.

The case was not about sending money to terrorist organizations or serving as their liaison, activities that are clearly and properly illegal. And it did not stop people from simply saying they support the goals of groups like Hamas or Al Qaeda, as long as they are not actually working with those groups. But it could have a serious impact on lawyers, journalists or academics who represent or study terrorist groups.

The case arose after an American human rights group, the Humanitarian Law Project, challenged the law prohibiting “material support” to terror groups, which was defined in the 2001 Patriot Act to include “expert advice or assistance.” The law project wanted to provide advice to two terrorist groups on how to peacefully resolve their disputes and work with the United Nations. The two groups — the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party — have violent histories and their presence on the State Department’s official list of terrorist groups is not in dispute.

But though the law project was actually trying to reduce the violence of the two groups, the court’s opinion, written by Chief Justice John Roberts Jr. on behalf of five other justices, said that did not matter and ruled the project’s efforts illegal. Even peaceful assistance to a terror group can further terrorism, the chief justice wrote, in part by lending them legitimacy and allowing them to pretend to be negotiating while plotting violence.

In a powerful dissent, Justice Stephen Breyer, also speaking for Justices Ruth Bader Ginsburg and Sonia Sotomayor, swept away those arguments. If providing legitimacy to a terror group was really a crime, he wrote, then it should also be a crime to independently legitimize a terror group through speech, which it is not. Never before, he said, had the court criminalized a form of speech on these kinds of grounds, noting with particular derision the notion that peaceful assistance buys negotiating time for an opponent to achieve bad ends.

The court at least clarified that acts had to be coordinated with terror groups to be illegal, but many forms of assistance may still be a criminal act, including filing a brief against the government in a terror-group lawsuit. Academic researchers doing field work in conflict zones could be arrested for meeting with terror groups and discussing their research, as could journalists who write about the activities and motivations of these groups, or the journalists’ sources… [emphasis added]

Inserted from <NY Times>

In 1967, I was working in the peace movement as a liaison between SDS and other antiwar groups.  In the process, I associated with many groups and people whose policies I personally opposed.  However, in a few afternoons of beer and poker, I did convince two Communists to leave the party.

I find this ruling offensive.  I have no problem with the material support provisions, as long as the individual making a donation, knows that the destination of the funds are a terrorist group or that the funds will be used to support terrorism.  Outlawing financial support does not violate the First Amendment.  Money is NOT speech.  I also have no problem with outlawing association for the purpose furthering terrorist acts.  Such conversations are conspiracy, and rightly illegal. However, outlawing conversations that do nothing to support the commission of terrorist acts, and in some cases even try to prevent them, SCOTUS has ruled falsely, because of First Amendment guarantees.  By making a conversation equal to a donation, SCOTUS is equating money and speech.  Money is NOT speech.

Ironically, the first violator may be the US government.

The Pentagon’s system of outsourcing to private companies the task of moving supplies in Afghanistan, and leaving it up to them to provide their own security, frees U.S. troops to focus on counterinsurgency.

But its unintended consequences undermine U.S. efforts to curtail corruption and build an effective Afghan government, according to the report to be reviewed at a congressional hearing on Tuesday.

"This arrangement has fueled a vast protection racket run by a shadowy network of warlords, strongmen, commanders, corrupt Afghan officials, and perhaps others," Representative John Tierney, chairman of a House of Representatives national security subcommittee, said in a statement.

Tierney, a Democrat, said the system "runs afoul" of the Defense Department’s own rules and may be undermining the U.S. strategic effort in Afghanistan.

The report by the subcommittee’s Democratic staff called protection payments "a significant potential source of funding for the Taliban," citing numerous documents, incidents reports and emails that refer to attempts at Taliban extortion along the road… [emphasis added]

Inserted from <Reuters>

Now that US has declared the Taliban to be a terrorist group, and the US is providing material support to that terrorist group.  Who should be criminally charged?