Protecting Speech, Promoting Democracy

The Humanitarian Law Project case concerns the freedom of individuals to teach and advocate international law and promote the use of nonviolent conflict resolution, peace, and human rights to groups designated as terrorist organizations by the United States government. Individuals representing human rights organizations that had been working with The Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE)—both considered terrorist organizations—prior to the enactment of 18 U.S.C. § 2339B are challenging the constitutionality of the law which prohibits “training”, offering “expert advice or assistance,” “service,” and “personnel” to terrorist organizations. This crime is punishable by fifteen years in prison.


The plaintiffs are challenging the above provisions of the law, arguing that the prohibitions are far too vague and that they criminalize speech based on content. In determining this case, the Supreme Court must decide if pure speech is “unconstitutionally prohibited” by 18 U.S.C. § 2339B.


Even after considering the protections that this law intends, including the protection of the United States and its citizens and the withholding of material, personnel, and intellectual resources from terrorist organizations, I find that its restriction on free speech is unconstitutional. 18 U.S.C. § 2339B wrongly criminalizes pure speech that is of a"purely expressive nature" and vital to a "functional democracy" without aim of profit.


It is exactly this type of speech that philosopher Alexander Meiklejohn, argues is vital to promoting democracy and the free expression of ideas. Meiklejohn emphasizes that the freedom of public discussion is “beyond the reach of legislation limitiation, beyond even the due process of law. With regard to them, Congress has no negative powers whatever.” (Tedford, 437). The aims of those involved with the Humanitarian Law Project are what Meiklejohn’s philosophy would designate as the promotion of “general welfare”.


By applying strict scrutiny to the case, the government is responsible for providing substantial reasons for regulating speech. They fail to do this. “Plaintiffs maintain that, as applied to their proposed speech, the challenged provisions are intolerably vague, discriminate on the basis of content, and penalize pure speech and association. The government has a compelling interest in combating terrorism, but as this Court has insisted, it must pursue that interest with respect for fundamental constitutional constraints. See, e.g., Boumediene v. Bush, 128 S. Ct. 2229 (2008); Hamdi v. Rumsfeld, 542 U.S. 507 (2004). This statute’s sweeping criminalization of human rights advocacy and other speech fails that test.“



The individuals and humanitarian organization want to continue teaching and advocating the use of international law and promoting conflict resolution, human rights, and peace which they are currently prohibited from doing according to 18 U.S.C 2339B. As previously mentioned, this statute stipulates that any communication of ideas to, with, or for an organization designated as terrorist by the government is a crime punishable by fifteen years in prison for providing “training”, “expert advice or assistance”, “service” or “personnel”. The prohibition of associating with terrorist groups is too broad and advances only government aims with no regard to the spectrum of associations that may occur. By focusing on and enlarging only the worst possible outcomes of free speech, the government is effectively prohibiting even communication that has the potential to leaven hostile relations. The government's position is found lacking when peered at through the lens of strict scrutiny. There is no compelling reason to criminalize such a broad variety of speech and expression.



This is confirmed by the opinion of the court. “The statute at issue employs ill-defined or undefined terms to criminalize pure speech. It proscribes speech by express reference to its content. It is triggered by the Secretary of State’s selective designation of “terrorist organizations,” based on criteria that are in part explicitly political. And as interpreted by the government, it imposes criminal liability on speech and association without any showing that the speaker intended to incite or promote terrorist activity in any way. Indeed, on the government’s reading, the statute makes speech a crime even if the speaker succeeds in reducing resort to violence by encouraging peaceful resolution of conflict."


It is important to consider that pure speech is given the highest allotted protection by the US Constitution. Because of this, strict scrutiny must be applied to this case. The government must provide a compelling reason for the speech to be prohibited. Despite the triggering of strict scrutiny due to the issue of pure speech, the inexplicit wording of 18 U.S.C. § 2339B would make this law vulnerable even to intermediate scrutiny according to the court since it prohibits “vastly more speech than is necessary to serve any legitimate interest in national security.”


Because of this case’s association with terrorist groups, it is tempting for those opposing the unconstitutionality of 18 U.S.C. § 2339B to draw a comparison with Dennis v. United States, which prohibits association or conspiracy with a group that advocates the overthrow of the government of the United States. The precedent established by Dennis v. United States and the application of the clear and present danger test suggested by that case, are found lacking concerning the Humanitarian Law Project. Further, the constitutional guarantees of free speech and freedom to assemble were solidified in Brandenburg v. Ohio and explicitly noted by the court when considering the Humanitarian Law Project, “Even where speech directly advocates criminal conduct, the Court has held that it may not be penalized unless it is in fact intended and likely to produce 'imminent lawless action.' Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); Hess v.Indiana, 414 U.S. at 108-09."


I’ve no choice to agree with the Supreme Court ruling in its conclusion that “18 U.S.C. § 2339B(a)(1)’s criminal prohibitions on the provision of “training,” “expert advice or assistance,” “service,” and “personnel” to government-designated “terrorist organizations” are unconstitutional as applied to pure speech that promotes only lawful, nonviolent activities.” In the interests of promoting democracy, blanket prohibitions such as this can only negatively impact the types of political conversations and promotion of general welfare that Meiklejohn argues are the most vital elements of freedom of expression and unconditionally privileged (Tedford, 436).