Congress has prohibited the provision of “material support or resources” to certain foreign organizations that engage in terrorist activity, based on its claim that contribution of resources may facilitate the criminal conduct of such organizations. The plaintiff here has sought to provide support to two such organizations but only to facilitate lawful, nonviolent purposes of those groups. Plaintiffs claim that Congress’ prohibition is too vague and infringes the rights to freedom of speech and association in violating of the Fifth and First Amendment.
Concerns of national security and foreign relations do not warrant abdication of the judicial role.
Congress has prohibited the provision of “material support or resources” to certain foreign organizations that engage in terrorist activity, claiming that contribution of resources may facilitate the criminal conduct of such organizations. The relevant statute broadly defined the ‘material support or resources’ as any property, tangible or intangible, or service. Also, the Secretary of State has the authority to designate an entity as a ‘foreign terrorist organization.’ The plaintiffs, two U.S citizens and six domestic organizations, has challenged the statute’s prohibition on four types of material support – training, expert advice, service, and personnel. The plaintiffs further claim that the prohibition is too vague and infringes the rights to freedom of speech and association in violating of the Fifth and First Amendment.
Does the material-support statute violate the freedom of speech guaranteed by the First Amendment?
No, the Government has not banned their pure political speech. The plaintiffs are free to speak anything they wish about the two organizations, alleged to be involved in terrorist activities and they may even advocate before the United Nations. Congress, through the enactment of the statute, does not suppress ideas of opinions in the form of “pure political speech.” Instead, Congress only prohibits “material support” which does not constitute speech at all.
When a case involves both the First Amendment issue and national security interests, the Constitution entrusts to the Executive and Legislative branches the power to provide for the national defense. The majority has failed to sufficiently consider the Government’s justifications behind the prohibition and to require tailoring of means to fit compelling ends. The statute at issue ultimately deprives the plaintiffs of the protection of their First Amendment rights.
While the plaintiffs argue that they contribute only for humanitarian, nonviolent purposes of the organizations, material support intended to “promote peaceable, lawful conduct” can further terrorism by terrorist groups in various ways. There is sufficient evidence that terrorist groups systematically conceal their activities behind charitable, social and political fronts.” Because money is fungible, such groups highlight the civilian and humanitarian ends to which such moneys could be put. Permitting material support to foreign terrorist organizations will also strain the U.S’ relationships with its allies and deteriorate cooperative efforts between countries to prevent terrorist attacks. This holding only applies to the plaintiffs‘ question whether prohibiting material support to foreign terrorist groups violates the freedom of speech and does not say whether the ruling extends to future applications of material-support statute.