Monday, June 21, 2010

Supremes Include Some Speech In "Material Support" Of Terrorism

This is not the first time the Supreme Court has ruled that some speech is not covered by the First Amendment (other than the classic "shouting 'fire' in a crowded theater"), but most previous such rulings have been of the nature of "publishing a recipe for building an atomic weapon" or something similarly tangible and undeniably dangerous. Now the Court has ruled that Congress and the Executive branch may decide that providing "material support" to a designated terrorist organization, even if that support is advice and even if the aspects of the organization being supported are admittedly benign, is illegal, in spite of the First Amendment:
WASHINGTON — Rejecting a First Amendment challenge, the Supreme Court on Monday upheld a federal law that bars providing “material support” to terrorist organizations.
Chief Justice John G. Roberts Jr., writing for the majority in the 6-to-3 decision, said the law’s prohibition of providing some forms of intangible assistance to groups said by the State Department to engage in terrorism did not violate the First Amendment.
“At bottom, plaintiffs simply disagree with the considered judgment of
Congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization,” the chief justice wrote. He was joined by Justices John Paul Stevens, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr,
Please note that the decision breaks the usual majority split in the Court by including John Paul Stevens. Note also that Sonia Sotomayor, whom many of us were more than a bit concerned about at the time of her confirmation, once again voted in the civil-liberties bloc.

If Congress and the Executive branch are able to enforce a particular view of constitutional rights, then they aren't rights; they're privileges granted by the powers-that-be. That is not how the First Amendment was taught to me: even unpleasant speech, offensive speech, and unpatriotic speech are protected, according to tradition.

But tradition means nothing these days. If we have lost Stevens in his last year, we have lost the Court; if we have lost the Court, we have lost civil liberties. Let us mourn the death of protected free speech in America. How long will it be before what I am writing at the moment will be legally disallowed as "pro-terrorist"? It would never happen, you say? How recently would you have assured me that no American would be ordered killed by the government with no shred of due process, let alone a trial? What about "extraordinary rendition"; how recently would you have said such a thing was impossible in America? "Sedition" will return as a crime within my lifetime... and I'm rather old. Good work, fearmongers!

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