Plaintiffs claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities…. [T]hose activities are: (1) “train[ing] members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes”; (2) “engag[ing] in political advocacy on behalf of Kurds who live in Turkey”; and (3) “teach[ing] PKK members how to petition various representative bodies such as the United Nations for relief.”…
The Court first held that teaching international law fell under the category of “training” and “expert advice or assistance", and thus constituted material assistance to terrorist groups under the terms of the statute. It then held that restriction constitutional under First Amendment attack.
The dissenters (Justices Breyer, Ginsburg, and Sotomayor) responded:
[T]he majority discusses the plaintiffs’ proposal to “‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes.’” The majority justifies the criminalization of this activity insignificant part on the ground that “peaceful negotiation[s]” might just “bu[y] time . . . , lulling opponents into complacency.” And the PKK might use its new information about “the structures of the international legal system . . . to threaten, manipulate, and disrupt.” What is one to say about these arguments—arguments that would deny First Amendment protection to the peaceful teaching of international human rights law on the ground that a little knowledge about “the international legal system” is too dangerous a thing; that an opponent’s subsequent willingness to negotiate might be faked, so let’s not teach him how to try?…
The risk that those who are taught will put otherwise innocent speech or knowledge to bad use is omnipresent, at least where that risk rests on little more than (even informed) speculation. Hence to accept this kind of argument without more and to apply it to the teaching of a subject such as international human rights law is to adopt a rule of law that, contrary to the Constitution’s text and First Amendment precedent, would automatically forbid the teaching of any subject in a case where national security interests conflict with the First Amendment.
It's not that the majority's concerns are unfounded. Any observer of international law is keenly aware that international law can and has been used as a tool of "lawfare" -- less to promote human rights protections and peaceful coexistence than to subvert these goals. But the dissent is considerably more right that it would be far more dangerous to prohibit speech simply because it could be used to promote ill-ends, prohibit training on peaceful coexistence because it could be used to sabotage the ideal. Whatever the shortcomings of the world's legal system -- and they are manifold -- it is one of the only clearly established alternatives to terrorist violence by NGOs, and thus it is clearly a benefit when NGOs and rebel groups adopt that approach above violent conflict.
The Supreme Court's decision is a massive triumph of despair over hope. And that's worrisome. Because no legal system predicated on individual rights can survive if our legal system defaults to fear.
I don't know a lot about this case. And prosecuting international/humanitarian lawyers would seem to be counterproductive. But that's not synonymous with "unconstitutional."
ReplyDeleteFree speech protects a lot; as I understand it, a website disseminating information on international law to the general public has the same protection as, say, a how-to guide website for building pipe bombs.
But let's say the pipe bomb site owner starts corresponding with the PKK specifically and shares his more advanced designs. No incitements to do anything illegal with it, to actually build or detonate anything, just sharing his knowledge and what the PKK does with it is none of his concern.
Now, would that be constitutionally protected speech? If it isn't and the Humanitarian Law Project's international law seminar for PKK members is, then -- since we've already established the general how-to guide is shielded by the First Amendment -- we're in the territory of restricting speech based on content (beyond traditional lines of yelling fire or urging violence). That's a sticky area, isn't it?
Joe, your hypothetical is different from the case in that the Court is talking about specifically teaching peaceful things, like law. Your hypo proposes teaching how to make weapons, which should be proscribable. In the decision, the Court is required to argue that service is fungible, like money, such that the teaching would move resources from what they would have spent on teaching, to make more weapons. It's another step removed, from aiding a violent activity, and that's the distinction.
ReplyDeleteThe most galling aspect of this case is the idea that one of the Court's arguments is the fact that teaching these orgs things will lend them legitimacy. This is McCarthyism at its best, and runs exactly counter to the idea behind the First Amendment.
Also, in the oral args, there was a hypothetical presented to Kagan (Arguing for the gov't) where Kennedy asked if writing a brief on behalf of the PKK is material support, and Kagan said yes. So, if an org wanted to challenge its status as an FTO, a lawyer representing them would be committing a felony. Nice.
Also, I wrote a little about this case, so I figured I'd share.
I think Joe has a good point. I might add, there is a line to draw between a teacher in a law school teaching law to individual students or giving a lecture open to the general public, on the one hand, and offering services directly to a group on the FTO list.
ReplyDeleteI also have to wonder about the internal argument that justifies groups such as the International Humanitarian Project's providing advice to FTO's. My point is related to but not quite the same as your lawfare point. Let me explain.
Many moons ago as you may probably know, the ACLU defended neo-Nazis in Skokie. The representation involved the neo-Nazis' right to march in a demonstration type parade. Whatever one thinks about the ACLU's decision to defend the neo-Nazis, the ACLU publicly recognized the noxiousness of the neo-nazis, arguing that the group was beyond the pale but, nonetheless, should not be denied the right to march - not for their benefit but to uphold the Constitution. That argument was a defensible argument within the tradition of the ACLU, one that I could imagine represents the ACLU's real position.
The argument put forward, however, in the IHP case is something different. The IHP contends (and still contends) that they sought to influence a revolutionary ideologically driven violent group like the PKK to employ legal means. In other words, the group is not merely vindicating a constitutional right via the IHP but going to the IHP and saying, we can help you advance your revolutionary cause. The IHP says that they might, thereby, turn the group towards rejecting violence in favor of peaceful use of the law.
I really find it rather hard to believe that the IHP believes its own rhetoric. In the case of groups such as the PKK, we are dealing with dedicated ideological revolutionaries. They are likely far less prone to listen to appeals from lawyers than are normal clients - and even average clients only sometimes listen.
I am thus inclined not to take the defense offered very seriously. I think it is made up to provide a public face to a noxious point of view. And, somehow, if a PKK type decides to go to law school, he can learn the law. But, that is different from a group offering services to such a group.
It is different. That's my point. But we know it's different because we're looking at the content of the speech, and basic principles of free speech lean strongly against discrimination over that content.
ReplyDeleteAnd to the best of my knowledge, "teaching" how to make weapons via web or print publication disseminated to the general public is not proscribable under current First Amendment jurisprudence. If it becomes proscribable when the same message is provided to a given group as a "service," then it would seem talking specifically to designated groups takes us outside of what's protected. So what business do we have saying that only messages we find unobjectionable to said groups are permitted?
(The above was in response to Andrew pointing out my hypo was a different situation.)
ReplyDeleteTo think on this further: I suspect howtobuildapipebomb.com would be protected even though it is exactly the kind of resource someone looking to actually kill people with pipe bombs would consult and even though in our society we don't really see pipe bombs as something legitimate to keep in your closet, unlike various and sundry firearms. So even though a lot more bad than good can come out the website being there -- and it's maybe even functionally worse than specifically advising one terrorist group because online it can be seen by every such group -- it still gets protected because it's not really being offered as a service.
Now, one response to this situation is to say "This is ridiculous; no one needs to know how to build a pipe bomb and it's dangerous for that information to be shared in either instance. Let's forget about what's a service and focus on what's really dangerous, and if it diminishes the scope of the First Amendment so be it."
Another reaction would be "Since there's no real difference between the website and the same advice aimed at one specific group, let's err on the side of liberty and hold the line against any restriction of speech as a service. The increased risk is the price we pay for a free society."
Both of those approaches strike me as being consistent positions. What doesn't strike me as consistent is splitting the baby and saying "Well, bomb-making instructions instructions are fine as long as you don't directly give them to the wrong people. But international human rights training is always okay because we judge it can never be exploited for sinister ends."
Joe,
ReplyDeleteI am not quite sure I agree with you that the content of speech is not relevant to its regulation. Defamatory speech can, albeit rarely, be enjoined. Moreover, in the Constitutional analysis of libel, the party to which the defamation is directed is relevant to what must be shown (e.g. malice versus mere negligence) to make out a case of defamation.
Historically, defamation jurisprudence did not always make truth a complete defense - meaning that the government could regulate speech that cast a person in a bad light. There was, if I recall correctly, fairly recent litigation in which a Court in Massachusetts ruled that, based on the wording of the Massachusetts statute for, I believe, libel, truth was not a defense in a particular class of defamation.
Now, on the merits of the whole thing, I think a point to consider is whether, within traditional Warren/Burger-era Constitutional analysis, there is a compelling state interest to regulate speech that might prove helpful to ideologically violent revolutionaries. I would think a good case for that proposition exists - although, I am not wed to that view and can imagine it as the beginning of a slippery slope towards censorship.
I might also note, following the analysis of people like French writer Bernard-Henri Lévy - see, Left in Dark Times -, that many of these groups which self-label themselves to be friends of humanity are, in reality, the leading edge of a deeply inhumane and nasty ideology. I have urged people to read his book before and I urge it again. He is a man of the Left who sees a new strain of thought that is destroying the Left in the name of "humanity" - a movement that is inimical to humanity. It seems to me that groups that would associate with the likes of the PKK or Hamas or Hezbollah fit that description. While the virtue - or, in this case, possibly the lack thereof - of a speaker ought not determine that speaker's right to speak, that does not mean we should ignore the implications of that speaker's acts when considering the whether there is a compelling interest to regulate speech. Which is to say, I think this is not a simple situation.