SCOTUS' Pants-Wetting Doctrine

[Nullifidian]

"If the thought of it makes me wet my pants, then it can be made illegal, no matter how much damage is done to the principle of free speech."

So now if a group is designated a "foreign terrorist organization", it can be illegal to speak to them even if the speech itself is legal and does nothing except further the organization's lawful aims. Thus "material support" is so broadly defined that it contains its own antonyms. Oh, and groups are designated as "foreign terrorist organizations" by executive fiat.

I can't see any way in which this could pose a problem. Surely the government would never abuse this authority to suppress the free speech rights of activists who oppose government policy or to isolate organizations whose purpose is to change government policy, would they?

David Cole on the ruling:

In the past, the Supreme Court has ruled that the First Amendment protected even the right to advocate criminal activity, so long as one’s advocacy was not intended and likely to produce an imminent crime. And it ruled that citizens had a right to associate with a group engaged in both legal and illegal activities, as lone as they intended to further only the group’s lawful activities.

Today, by contrast, the court rules that speech advocating only lawful, nonviolent activity can be made a crime, and that any coordination with a blacklisted group can land a citizen in prison for 15 years.

The decision has deeply disturbing implications. It means that when President Jimmy Carter did election monitoring in Lebanon, and met with all of the parties to the election — including Hezbollah, a designated “terrorist group” — to provide them with his advice on what constitutes a fair election, he was committing the crime of providing “material support,” in the form of “expert advice.”

It means that when The New York Times and The Washington Post published op-eds by a Hamas leader, they were engaged in the crime of providing “material support” to a designated terrorist group, because to publish the op-ed they had to coordinate with a spokesperson from Hamas.

And it means that my clients, a retired judge and an established human rights group, cannot continue to work for peace and human rights without risking long prison terms.

Those who defend this law often focus on the provision of funds — not at issue before the Supreme Court — and argue that money is fungible, and can be used for any purpose.

But human rights advocacy is not fungible. It cannot be turned into guns and bullets. It is designed to persuade, not coerce. It is, in short, what the First Amendment is all about. But it is now a crime, and according to this Supreme Court, the First Amendment poses no obstacle to its suppression.

[yguy]

Originally Posted by Nullifidian

So now if a group is designated a "foreign terrorist organization", it can be illegal to speak to them even if the speech itself is legal and does nothing except further the organization's lawful aims.

For the airhead contingent, which includes most of you, foreign terrorist organizations don't have any "lawful aims".

hth

[Qingdai]

It also means any environmental or animal rights group in the US is going to have a hard time getting a lawyer or advice, if this is going into effect.

This is not good.

[The Man]

Originally Posted by yguy

For the airhead contingent, which includes most of you, foreign terrorist organizations don't have any "lawful aims".

So ending the blockade of Gaza isn't a lawful aim in yguy-land? How strange. What about the unlawful destruction of Palestinian houses by Israeli settlers - is terminating that an unlawful aim? And then there's the exploitation of foreign countries' resources by governments like that of the United States. I presume doing anything to put a stop to that would be unlawful too. How about feeding and clothing the poor of Gaza? Illegal?

You sure do have strange concepts of what's legal.

[BrotherMan]

If you think about it Mr. Fidian they are being remarkably consistent. If you recall, they have previously stated that money is the same as speech. With this they are simply suggesting that the converse of that is also true: Speech equals money.

[California Tanker]

Oh, and groups are designated as "foreign terrorist organizations" by executive fiat.

Although it does say it's subject to judicial review. (Granted, it doesn't say how in the opinion, but I'll take it at face value)

The Majority opinion seems pretty solid. There is little vagueness in the legislation, and there don't seem to be any effects on the individual's freedom to speak on a political subject. Even if we are to presume (and I don't make such a presumption) that providing advice on how to proceed on peace talks was not intended to be covered as a prohibited activity under the legislation, it wouldn't be the first time a law turned out, in hindsight, to be excessively broad or to have unintended side effects. That doesn't necessarily make it unConstitutional, it just makes it a poorly-written law. Much of the ranting or raving about the outcome of the case are based on the effects on their pet point of view, but little, so far, is on the actual rationale used to come to the judgement which, as I say, seems quite valid. It's a pretty conservative ruling (small 'C'), which is about on par with the average Supreme Court opinion.

I think people involved in mediation are safe. I doubt that would be construed as advice. (After all, if one side thought the mediator was advising the other side, one would question the mediator's neutrality)

NTM

[The Man]

I’m not sure a ruling that doesn’t require a person to have any knowledge of or intent to further a terrorist group’s illegal activities in order to convict said person for assisting said group qualifies as “conservative.” It seems pretty radical to me. And radical in the completely wrong direction. Maybe I’m just misreading the relevant text:

In IRTPA, Congress clarified the mental state necessaryto violate §2339B, requiring knowledge of the foreign group’s designation as a terrorist organization or the group’s commission of terrorist acts. §2339B(a)(1). Congress also added the term “service” to the definition of “material support or resources,” §2339A(b)(1), and defined“training” to mean “instruction or teaching designed to impart a specific skill, as opposed to general knowledge,” §2339A(b)(2). It also defined “expert advice or assistance” to mean “advice or assistance derived from scientific, technical or other specialized knowledge.” §2339A(b)(3).Finally, IRTPA clarified the scope of the term “personnel”by providing:

“No person may be prosecuted under [§2339B] in connection with the term ‘personnel’ unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with1 or more individuals (who may be or include himself) to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.”§2339B(h).

But if I am misreading it (and I’m hardly the only person who’s read it this way), then the fact that it’s even open to said misreading goes to show that it’s a poorly worded decision that opens the door to far too many potential abuses of power. Since I’m far too sleep-deprived to type legalese coherently right now I’ll let one of my friends on another board (login required for viewing) explain:

Based on my reading, "under that terrorist organization's direction or control" sounds unconstitutionally vague, based on the severe lack of any intent or knowledge (beyond the fact that the group is labeled a a terrorist organization). The "training" definition also still seems very vague to me; why can't there be legitimate specific skills to impart, like medical training to help locals?

In addition, if I'm reading the relevant portion of the quoted text correctly (which I very well may not be due to the presence of sleep deprivation and extreme bureaucrat-speak), how can you even be expected to know who’s affiliated with a terrorist organisation if they’re working under its direction and don’t let you know they’re working with it? There are far too many ways to break the law without realising you're breaking the law, and as far as I can tell, the idiots on the Roberts court provided us with just yet another one.

As far as I’m concerned, this is just another shitty decision by SCOTUS in a long line of shitty decisions by SCOTUS. It’s what we’ve come to expect, really, but it doesn’t mean it should just be accepted without criticism.

[Stephen Maturin]

Originally Posted by California Tanker

Although it does say it's subject to judicial review. (Granted, it doesn't say how in the opinion, but I'll take it at face value)

Sort of. The stuff about the Secretary of State designating "foreign terrorist organizations" is in a different statute, the Immigration and Nationality Act. We start off with:

Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the designated organization may seek judicial review in the United States Court of Appeals for the District of Columbia Circuit.

8 U.C.S. § 1189(c)(1).

First off, only the designated organization has standing to contest the designation. Groups and individuals like the plaintiffs in this lawsuit are SOL.

Also, check out that limitations period! There's no judicial review unless that Sudanese charitable organization that just received a "foreign terrorist organization" designation reads the Federal Register on a regular basis ( ) and can hire an American lawyer to mount a challenge in the D.C. Circuit within thirty days. In other words, as a practical matter, ain't no judicial review.

Next up:

Review under this subsection shall be based solely upon the administrative record, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation, amended designation, or determination in response to a petition for revocation.

So the challenger gets no discovery. The court bases its decision on whatever information the SoS wants to place in the administrative record, plus any super secret information the SoS wants to make up and submit to the court on an ex parte basis.

Now let's talk standard of review:

The Court shall hold unlawful and set aside a designation, amended designation, or determination in response to a petition for revocation the court finds to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

In the parlance of administrative law, (A) is code for "The court shalt rubber-stampeth all that the Agency doth."

(B) contrary to constitutional right, power, privilege, or immunity;

How a "foreign terrorist organization" designation could violated the U.S. constitutional rights, powers, etc. of a foreign organization is something of a mystery, but hey, whatever. This makes it look like Congress is protecting constitutional rights, and it's all about appearances in the politics business.

(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;

Any State Department functionary who manages to exceed a grant of statutory authority this broad should be scrubbing public toilets for minimum wage. Then s/he can become a high-ranking government official in the next Bush administration.

(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2), or

See comment on Subsection (A).

(E) not in accord with the procedures required by law.

Various and sundry "substantial compliance" doctrines rendered this basis of review meaningless in other contexts decades ago, and there's no reason to believe it'll be any different here.

So, as usual, judicial review of administrative agency action does indeed exist, but only in dog-and-pony-show form.

Originally Posted by The Man

I’m not sure a ruling that doesn’t require a person to have any knowledge of or intent to further a terrorist group’s illegal activities in order to convict said person for assisting said group qualifies as “conservative.” It seems pretty radical to me. And radical in the completely wrong direction.

I'm still trying wrap my itsy bitsy head around this one. Roberts & Co. assure us that pursuant to the statute under review "plaintiffs may say anything they wish on any topic. . . . Congress has not, therefore, sought to suppress ideas or opinions in the form of 'pure political speech.' Rather, Congress has prohibited 'material support,' which most often does not take the form of speech at all." That's nice and all, but in Citizens United the Court held that restrictions on spending did suppress "pure political speech," even though the spending restrictions left the organization at issue free to "say anything they wish on any topic."

So then, the level of First Amendment protection an activity receives appears to depend exclusively on the Court's content-based assessment of the value of ideas at issue. That's a pretty fucked up standard, but at least it'll make answering First Amendment essay questions much easier for overworked law students.

[Sauron]

Originally Posted by yguy

For the airhead contingent, which includes most of you, foreign terrorist organizations don't have any "lawful aims".

hth

Then maybe someone should have told the CIA that, back when they were sending money and arms to the mujahideen in Afghanistan.

You know -- the foreign folks who were conducting an (unlawful) terror campaign of resistance against the USSR?
You know -- the folks who became the Taliban?

LOL. Idiot. Your posts are like shooting fish in a barrel. Big, stupid, slow-moving fish.

[California Tanker]

I’m not sure a ruling that doesn’t require a person to have any knowledge of or intent to further a terrorist group’s illegal activities in order to convict said person for assisting said group qualifies as “conservative.” It seems pretty radical to me.

I do note this comment from Scotusblog:

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

The law is very specifically written. If you know it's a terrorist group, you're not allowed to help it for any reason whatsoever. The level of knowledge required to be culpable is not to the extent of knowing what the illegal activities are, you just need to know that it's a listed organisation, which is, I believe, a matter of public record. Anything beyond that is irrelevant.

That's nice and all, but in Citizens United the Court held that restrictions on spending did suppress "pure political speech," even though the spending restrictions left the organization at issue free to "say anything they wish on any topic."

I guess I need to re-review the opinion, but is it possible that the two examples of speech are being considered under the scrutiny tests? (Strict, in the Holder v HLP case). You can argue the government has a compelling interest in restricting speech when related to terrorist organisations, but less of one in restricting speech in the domestic political process.

NTM

[Crumb]

Originally Posted by Stephen Maturin

Also, check out that limitations period! There's no judicial review unless that Sudanese charitable organization that just received a "foreign terrorist organization" designation reads the Federal Register on a regular basis ( ) and can hire an American lawyer to mount a challenge in the D.C. Circuit within thirty days. In other words, as a practical matter, ain't no judicial review.

And of course any American lawyer that takes their case is then committing a crime, since they are offering advice and services to an organization that they know is on the list. So I'm sure they'll find lawyers lined up to help them.