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
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.
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