Tuesday, February 23, 2010

terrorism and free speech

NYTimes | Congress has made it illegal to provide “material support” to foreign terrorist groups — a sensible means of combating terrorism but one that carries the risk of being applied in ways that infringe on Americans’ freedom of expression. The Supreme Court has a chance to draw the line where it should be between banning aid to terrorists and undermining civil liberties.

NYTimes | NOTWITHSTANDING the finger-pointing (and judicial head-shaking) since the Supreme Court’s decision last month on corporate speech, that ruling may not be the most consequential of this term. The court is also considering several cases whose implications reach back centuries, to the most fundamental underpinnings of Anglo-American criminal and constitutional law.

Earlier this term, the court heard three challenges to the 1988 federal criminal statute outlawing “theft of honest services,” a tool widely used by the George W. Bush administration Justice Department to prosecute political and corporate corruption. Today, the court will hear a challenge to the so-called material support statute, passed in the wake of the first World Trade Center and Oklahoma City bombings and amended repeatedly after 9/11, that makes it a felony to provide “material support” to a terrorist organization.

Although the crimes that the statutes are intended to prohibit — corruption and terrorism — are very different, both laws resulted from Congress’s attempt to push the boundaries of criminality in order to control the harder-to-define aspects of deplorable conduct. Both statutes reflect the recognition that a prohibition based on a “bright line” standard, like the exchange of money for a political favor or for the purchase of terrorist weapons, would be too easily evaded by sophisticated politicians, businessmen or terrorists.

The appeal of such a broad approach is easy to see. Do we really want potentially corrupt politicians or violent terrorist sympathizers to be able to avoid prosecution by having a clear idea of what they can and cannot do?