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March 5, 2010

The Line Between Free Speech and the Antiterrorism Act

Communication with terrorist groups: Where do you draw the line between speech vs. conduct?

Currently the Supreme Court is weighing the decision of where to draw the line between Americans’ right to free speech and a federal law that prohibits aid to terrorist groups.  In Holder v. Humanitarian Law Project, the Humanitarian Law Project and other civil rights organizations that are challenging the antiterrorism act argue that it prohibits them from aiding the peaceful efforts of groups that the State Department has deemed to be terrorist organizations.

Georgetown University Law Professor David Cole

Georgetown University Law Professor David Cole

David Cole, professor of law at Georgetown University who recently delivered the oral arguments in the case at the Supreme Court spoke at an _’s Standing Committee on Law and National Security meeting on March 3. Cole discussed the perspectives and arguments on both sides of the case including civil liberties issues presented by the current U.S. and international regimes’ restrictions on terror financing.

The case challenges the constitutionality of laws as applied to speech and association, and issues of due process related to the designation of organizations and the freezing of their assets.

Cole stated that when the government criminalizes those for speech, which is a First Amendment right, it should satisfy strict scrutiny as to what is lawful and unlawful, which it does not in this case.

The government’s argument is that this is not a case about regulating speech, but rather conduct — therefore the court should have more leniencies. Cole argued that the advice and expert opinion provided by the groups should strictly be considered free speech, not conduct, which is fungible. The government’s claim is that as the antiterrorism law considers any expert opinion or advice to these terrorist groups illegal.

By not aiding or allowing others to help guide these groups in pursuing lawful means to end their conflicts, are we increasing the risk of them taking unlawful means?

In Cole’s opinion the justices expressed concern for the breadth of the antiterrorism law as well as the need to protect free speech. A ruling in the Holder v. Humanitarian Law Project case is expected by late June.

For merit briefs on the case, click here.

To listen to a podcast with the complete remarks from Cole, click here.