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No Material Support: USSC Says this Includes Your Speech

By Tanya Roth, Esq. on June 21, 2010 | Last updated on March 21, 2019

Like everything, free speech has its limits. One of those limits was defined by the Supreme Court on June 21 when it handed down its decision in the companion cases of Holder v. Humanitarian Law Project, et al. and Humanitarian Law Project, et al., v. Holder. These are the only "war on terror" cases the Court will decide this term and the decision is a momentous one. The conservative wing of the Court made up the majority opinion, joined by long time liberal, Justice John Paul Stevens. Justices Breyer, Sotomayor and Ginsburg dissented, with Justice Breyer exercising his free speech rights by reading the dissent from the bench.

The case concerns the federal law against providing "material support" to foreign organizations designated by the State Department as engaging in terrorism. According to SCOTUS Blog, the groups challenging the law wished to avoid criminal prosecution for assisting groups listed as terrorist organizations in achieving peaceful goals, such as teaching the groups non-violent conflict resolution. The Court found that the First Amendment did not protect speech in this specific situation.

According to The New York Times, the Court deferred to the authority of the executive and legislative branches in this area. Justice Roberts wrote, "the political branches have adequately substantiated their determination that, to serve the government's interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups' nonviolent ends." (Emphasis added.)

SCOTUS blog reports the dissenting members of the Court, led by Justice Breyer, found the majority went too far in criminalizing speech. The dissent argued the majority opinion "deprives the individuals before us of the protection the First Amendment demands."

The Times writes that since 2001, the government says it has prosecuted about 150 defendants for violating the material support law, obtaining in the neighborhood of 75 convictions.

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