Advocacy is Not a Gun, by David Cole

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This article originally published at the New York Times, Room for Debate (June 21, 2010).

David Cole is a professor at Georgetown University Law Center, and the author, most recently, of “The Torture Memos: Rationalizing the Unthinkable.” As a volunteer attorney for the Center for Constitutional Rights, he served as counsel for Humanitarian Law Project in this case.

According to today’s Supreme Court decision, advocating for human rights and peace can be prosecuted as a “terrorist” crime, punishable by 15 years in prison.

It does not matter that the speaker intends to support only nonviolent activity, and indeed seeks to discourage a resort to violence. It does not matter if the speech in fact convinces its listeners to abandon violence.

For the first time ever, the Supreme Court has ruled that the First Amendment permits the criminalization of pure speech advocating lawful, nonviolent activity. The court reasoned that it is conceivable that such speech might burnish a designated group’s image, and thereby “legitimize” it, and therefore Congress can make all such speech a crime.

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.

The only way the court could reach this result was by failing to subject the law to the skeptical scrutiny traditionally applied to content-based prohibitions on speech. Once the government invoked the “terrorist” label, the court deferred, rather than require the government to meet the heavy burden that prohibitions on speech generally require.

This is the same sort of deferential approach that the Supreme Court took to anti-Communist laws in the early days of the McCarthy era. It was not until Senator McCarthy was censured, and McCarthyism was on the wane, that the court began to enforce the First Amendment rights that were so gravely threatened by the anti-Communist laws of that time.

I had hoped that we would have learned from the errors of that period. Apparently not.v