Prominent Supporters of Terrorist Organization MEK May Not Be Protected by First Amendment

Dozens of prominent American political figures from both political parties may have violated the federal anti-terrorism law by advocating that the MEK should be removed from the list of designated terrorist organizations. Because of the Supreme Court's decision in Holder v. Humanitarian Law Project (2010), what they said may not be not protected by the First Amendment.


The MEK, known in English as the "People's Mujahadeen of Iran," is a large military organization that has shifted its ideology and allegiance many times over the years. Before 1979 the organization mounted many attacks against westerners in Iran and assassinated several Americans. In 1979 it supported taking the American diplomats in Teheran hostage. After the Iranian Revolution the MEK began fighting the new Iranian leadership; it found refuge in Iraq and fought alongside Saddam Hussein against both Iran and Iraq's own Kurdish population. Over the years the MEK has been accused of numerous war crimes and human rights violations. In 1997 the State Department added the MEK to the list of designated terrorist organizations. Recently the group has been implicated in the assassination of Iranian scientists. 

The MEK, of course, wishes to be removed from the State Department list of designated terrorist organizations.  The Huffington Post has published a list of 33 leading Democrats and Republicans who spoke on behalf of the MEK at MEK-related meetings and conferences over a seven-month period between December 2010 and July 2011. The first two names on the list, which is arranged alphabetically, are former U.S. Senator Evan Bayh, a Democrat, and former U.N. ambassador John Bolton, a Republican. Gus Taylor of the Washington Times reports that Ed Rendell, former Governor of Pennsylvania, and other prominent figures earned speaking fees for their appearances on behalf of the MEK. Ryan J. Reilly at Talking Points Memo also reports that several of the speakers earned fees. Glenn Greenwald at Salon argues that even if the speakers were not paid, the speakers may have broken the law, because the Supreme Court ruled in the Humanitarian Law Project case that advocacy for terrorist organizations may be punished if it is "coordinated" with the terrorist organization.

Is Greenwald right?  Have these American politicians stepped beyond the bounds of the First Amendment as interpreted by the Supreme Court and violated the law?

The federal statute that governs this matter is the Antiterrorism and Effective Death Penalty Act.  The law prohibits people from providing "material support" to a terrorist organization. The key legal issue in this case is whether what these political figures said constitutes "material support." The key factual issue is whether they made these statements at the request of or in coordination with the MEK. 

The federal Antiterrorism and Effective Death Penalty Act is codified at 18 U.S.C. 2339B.  It provides, in relevant part:

Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both ....

The term "material support" is defined at 18 U.S.C. 2339A.  The relevant portions of that statute provide:

the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

the term “expert advice or assistance” means advice or assistance derived from scientific, technical or other specialized knowledge.

The Humanitarian Law Project challenged the constitutionality of this law as applied to peaceful advocacy. The HLP and other advocacy groups wanted to work with terrorist organizations to train them how to achieve their goals through peaceful means. They wished to teach organizations such as the PKK (a Kurdish terrorist organization) or the LTTE (a Sri Lankan terrorist group) how to effectively lobby institutions such as Congress or the United Nations or how to apply for grants for peaceful purposes such as water projects. The HLP and other humanitarian groups claimed that they have the right, under the First Amendment, to work with terrorist groups to turn them into the paths of peace.

The United States Supreme Court, by a vote of 6 to 3, rejected the constitutional claims of the Humanitarian Law Project. The majority of the Court found that advocacy on behalf of a terrorist organization is constitutionally protected only if the speech is undertaken wholly independently of the organization. If the "service" is rendered in coordination with the terrorist organization, then it falls outside the protection of the First Amendment and the government may impose criminal sanctions for such speech. Here are the key portions of Chief Justice Roberts opinion:

the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.

The statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization. Independent advocacy that might be viewed as promoting the group's legitimacy is not covered.

Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.

One of the principal reasons that Chief Justice Roberts offered in support of the ban on "material support" for terrorist organizations was that such support lends "legitimacy" to a terrorist organization:

Material support meant to "promot[e] peaceable, lawful conduct," Brief for Plaintiffs 51, can further terrorism by foreign groups in multiple ways. "Material support" is a valuable resource by definition. Such support frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups--legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds--all of which facilitate more terrorist attacks.

In a powerful dissenting opinion, Justice Breyer, joined by Justices Ginsburg and Sotomayor, rejected the majority's "legitimizing" rationale for upholding the law:

But this "legitimacy" justification cannot by itself warrant suppression of political speech, advocacy, and association. Speech, association, and related activities on behalf of a group will often, perhaps always, help to legitimate that group. Thus, were the law to accept a "legitimating" effect, in and of itself and without qualification, as providing sufficient grounds for imposing such a ban, the First Amendment battle would be lost in untold instances where it should be won. Once one accepts this argument, there is no natural stopping place. The argument applies as strongly to "independent" as to "coordinated" advocacy.

Breyer emphasized that independent advocacy on behalf of a terrorist organization is at least as likely to "legitimize" a group as coordinated advocacy is:

Nor can the Government overcome these considerations simply by narrowing the covered activities to those that involve coordinated, rather than independent, advocacy. Conversations, discussions, or logistical arrangements might well prove necessary to carry out the speech-related activities here at issue (just as conversations and discussions are a necessary part of membership in any organization). The Government does not distinguish this kind of "coordination" from any other. I am not aware of any form of words that might be used to describe "coordination" that would not, at a minimum, seriously chill not only the kind of activities the plaintiffs raise before us, but also the "independent advocacy" the Government purports to permit. And, as for the Government's willingness to distinguish independent advocacy from coordinated advocacy, the former is more likely, not less likely, to confer legitimacy than the latter. Thus, other things being equal, the distinction "coordination" makes is arbitrary in respect to furthering the statute's purposes. And a rule of law that finds the "legitimacy" argument adequate in respect to the latter would have a hard time distinguishing a statute that sought to attack the former.

The speeches and appearances by American political leaders on behalf of the MEK are quite literally intended to "legitimize" the groups by having it removed from the list of designated terrorist organizations. They therefore fall within the ambit of the statute's purpose, as interpreted by the majority of the Supreme Court. 

Do these speeches constitute "material support" for the MEK within the meaning of the statute?

From a lay perspective the speeches advocating the legitimization of the MEK would clearly constitute "material support" for the organization. As a matter of statutory construction, speeches on behalf of the MEK would constitute either a "service" or "expert advice or assistance" under 18 U.S.C. 2339A.

The final question is whether or not the speeches and appearances by American political figures on behalf of the MEK were "independent advocacy" or were "coordinated" with the organization.  Greenwald quotes a State Department official describing how these speaking engagements are often arranged:

“Your speech agent calls, and says you get $20,000 to speak for 20 minutes. They will send a private jet, you get $25,000 more when you are done, and they will send a team to brief you on what to say.”

If this is how the speaking appearances were arranged, they would clearly seem to constitute "coordination" with a terrorist organization.

Greenwald decries the fact that many individual Muslims in the United States have been prosecuted and imprisoned for offering far less "material support" to designated terrorist organizations than these mainstream Christian politicians have tendered to the MEK. On First Amendment grounds Greenwald does not support the anti-terrorism law insofar as it punishes political speech, but on fairness grounds he does support the ongoing investigation into the activities of the MEK supporters.

The problem with the anti-terrorism law and the Supreme Court's decision in Holder v. Humanitarian Law Project is a recurring one in American history. It is the same problem we have faced in every major conflict. During war or the threat of war the people are afraid and the government enacts laws prohibiting advocacy on behalf of the nation's enemies. The Alien and Sedition Act was enacted by the Adams administration during the undeclared war with France; Lincoln suspended habeas corpus and prosecuted Copperhead leaders in military tribunals during the Civil War; the Espionage Act was intended to squelch opposition to World War I; the Smith Act, enacted during the Cold War, made it a crime to belong to the Communist Party; Amendments to the Selective Service Act adopted during the Vietnam War made it a crime to burn a draft card; and now the Antiterrorism Act outlaws "material support" for terrorist organizations, including speech that is directed at lawful and peaceful purposes.

There is a hopeful aspect to this history.  During wartime, the courts have generally upheld these types of laws repressing speech. Once the threat has passed, however, the courts have almost always recognized that those laws violate the First Amendment.  It is safe to predict that this apsect of the Antiterrorism law will also be declared unconstitutional once the fear of terrorism fades.

But it is not enough that we should enjoy freedom of speech only when the country is not afraid.  As Justice Robert Jackson said at the height of World War II in West Virginia Board of Education v. Barnette (1943):

Freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.

It is also appropriate to remember the words of Justice Louis Brandeis about fear and the First Amendment. During the first Red Scare, in arguing in support of an American's right to help organize the Communist Party, he told us that "those who won our independence were not cowards," and that "fear breeds repression." 

We should not be so afraid of terrorism that we sacrifice our most cherished tradition: the right to speak freely. The Supreme Court's decision in Holder v. Humanitarian Law Project should be overruled.

The entire passage from Brandeis' opinion in Whitney v. California is set forth below.

***

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

 Louis Brandeis, from Whitney v. California (1927)

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.