Decriminalize Political Speech

In February, the Supreme Court will hear on appeal what many consider to be among the most important cases that speaks to the constitutionality of political speech in recent times, Holder v. Humanitarian Law Project.

And, in light of the failed attempt to blow up a Northwest jetliner heading from Amsterdam to Detroit on Christmas day, it will be a test of the strength of the Bill of Rights, and even more important that the First Amendment prevail.

The plaintiff in the case, Humanitarian Law Project, is a human rights group that often consults with the United Nations, and that has in the past assisted the Kurdistan Workers’ Party, as well as the Liberation Tigers of Tamil Eela. They, along with administrative law judges and others, have had their right to free association challenged under legislation that dates back to Newt Gingrich’s Contract with America, and the mid-1990’s, in the aftermath of the Oklahoma City bombing; legislation that was signed into law by then President Bill Clinton.

The “Anti-Terrorism and Effective Death Penalty Act” was unmistakeably every inch a bipartisan effort, and is easily recognizable as the precursor to the USA Patriot Act. The objective of AEDPA was to cut off all sources of material assistance to any groups the State Department deems to be sources of international terror.

According to Free Expression Policy Project, the measure empowers the State Department to construct a list of “foreign terrorist organizations,” and criminalize any “material support” to these groups. While parts of the law were struck down several times by federal courts, plaintiffs in Holder v. Humanitarian Law Project are taking legislation that has had the chilling effect of derailing the First Amendment all the way to the Supreme Court.

So, on February 23rd, the highest court in the land will get to decide whether any of the four provisions of AEDPA constitute criminal activity. The penalty for being convicted of providing material support to a State Department blacklisted group can be as much as fifteen years behind bars. The definition of terrorism is said to be simply “any actual or threatened use of a weapon against people or property.”

Two years ago, an appeals court found much of the law o be “unconstitutionally vague,” and it will soon be the Supreme’s turn up at bat to hear a challenge to a measure that, in the words of attorney for the plaintiffs, is “so sweeping that it treats human rights advocates as criminal terrorists…and makes advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”

Apart from the Carter Center, Human Rights Watch, and coalitions of sociologists and anthropologists, Humanitarian Law Project has another interesting friend.. A group calling itself “Victims of the McCarthy Era,” with 32 members many of whom were either themselves blacklisted and/or incarcerated during the 1950’s, or had family members blacklisted, for their guilt by association with the Communist Party, has signed onto an amicus brief, and urges that the Supreme Court follow an earlier ruling, Scales v. United States, that suggests “material support” bans must apply only to those who specifically support a group’s illegal activities.

When President Obama speaks of threats posed by al Qaeda and what he calls “its affiliates,” he invites not only fear and rancor, like his predecessor George W. Bush, but he’s essentially comparing political organizations with corporate franchises. Surely, al Qaeda is not the terrorist equivalent of MacDonald’s.

The dangers of seeing any one group as if it were an apocalyptic octapus with wide, and unambiguous tentacles, far outweigh any benefits. Any effort that has as its mission the prevention of human rights abuse, and discrimination must not be silenced in the name of making the world safe from terrorism. Indeed, to silence free speech is a form of terrorism, an act of violence against independent thought.

We urge the Supreme Court to uphold the ruling of a federal court and, in effect, nullify any legislation that is “unconstitutionally vague,” that confers upon human rights activists guilt by association, and that criminalizes political speech.


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JAYNE LYN STAHL is a widely published poet, essayist, playwright, and screenwriter, member of PEN American Center, and PEN USA.

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