The Congressional Research Service recently released a report that explores when it is permissible for the government to restrict online speech that advocates for terrorism. The report gives a brief synopsis of the conclusions of Brandenburg v. Ohio and Holder v. Humanitarian Law Project, as both cases are fundamental in understanding when speech can and cannot be restricted by the government. The report goes on to explain the current debates surrounding terroristic speech and the First Amendment, including whether or not speech that advocates for terrorism should receive a full ban in the same way that child pornography has received a full ban.
Background: Brandenburg v. Ohio
Clarence Brandenburg was a leading member of a rural Ohio branch of the Ku Klux Klan. In 1964, Brandenburg contacted a journalist from a Cincinnati television station and asked if the station was interested in covering one of the KKK’s upcoming rallies. In their coverage of the rally, the Cincinnati station captured footage of KKK members making threatening remarks, including Brandenburg saying that he may have to take revenge against all three branches of government for conspiring to punish the white race.
Brandenburg was eventually charged with violating an Ohio criminal syndicalism statute, which forbids advocating for “crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Brandenburg was quickly convicted, and his attempts at appeal proved unsuccessful until his case was taken by the Supreme Court in 1969.
In its per curiam majority opinion, the Supreme Court decided to overturn the criminal syndicalism statute, and reversed Brandenburg’s conviction by extension. Brandenburg v. Ohio established that “advocacy of law breaking and violence” can be protected under the First Amendment because “the mere abstract teaching of the moral propriety or even moral necessity for a resort to violence is not the same as preparing a group for violent action.” Brandenburg’s legacy is establishing that for “punishment of speech advocating violence to be unconstitutional, the speaker must both intend to incite a violent or lawless action and that action must be likely to imminently occur as a result.”
Background: Holder v. Humanitarian Law Project
Holder v. Humanitarian Law Project was heard in 2010, and is of profound significance in that it was the first time a restriction on political speech passed the Brandenburg test and was considered constitutional.
In Humanitarian Law Project, NGOs challenged the prohibition of providing “material support for terrorism” in the form of expert advice and assistance, training, service and personnel as violating the First Amendment. One NGO wished to continue to work with members of the Kurdistan Workers Party (PKK) of Turkey to teach strategies of peaceful conflict resolution and other skills for civic participation. Second, other American NGOs wanted to aid the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka with filing paperwork to obtain tsunami disaster relief and to equip them with skills in negotiating an end to the Sri Lankan civil war. The American NGOs recognized that both the PKK and LTTE were FTOs, and only intended to offer help that was humanitarian and would have been otherwise legal if not for the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996.
The Supreme Court concluded that what NGOs like the Humanitarian Law Project were intending to do constituted providing “expert advice and support” and was therefore unlawful. In the majority opinion, Chief Justice John Roberts explained that if NGOs helped FTOs with lawful pursuits like political and humanitarian advocacy, it would only lead to FTOs channeling more of their resources into unlawful pursuits.
The decision in Humanitarian Law Project was met with outrage, particularly by humanitarian organizations that could no longer coordinate with FTOs to promote human rights and reform.
As the BORDC/DDF explained back in July of last year, the material support statute gives the government a blank check to accuse U.S. activists and charities of materially supporting terrorism when they give advice on how to resolve conflicts or challenge the merit of a U.S. foreign policy objective.
Where Precedent Leaves Us
The report notes that some policymakers have suggested differentiating speech that promotes terrorist acts from speech that encourages others to act violently or break the law. These policymakers liken speech that promotes terrorist acts to child pornography, and argue that both are such a danger to society that the government should be able to restrict their dissemination entirely. The report refutes this comparison, since child pornography is inherently harmful in its exploitation of children, while speech that advocates terrorism does not inherently harm another individual in its production.
The Supreme Court has previously stated that each media platform comes with its own “special First Amendment problems.” The report specifically cites how the Court has put more restrictions on broadcast speech, since broadcast speech is more likely to be overheard by children. Some policymakers argue that the Internet is much more accessible to children than broadcast speech, and therefore the criteria to restrict speech on the Internet should be much more relaxed. The Supreme Court has not yet heard a case that addresses whether or not the Internet should be restricted differently than other platforms because of the increased potential for widespread dissemination, but such a case has the potential to completely change when content can be restricted on the Internet.
Worst of all, precedent leaves us with a court-sanctioned material support of terrorism statute that is dangerously vague. The government has criminalized support to terrorist organizations in the form of “expert advice, support and training”, but what qualifies as any of these things is the government’s prerogative. The statute is written in a way that allows for the government to criminalize speech that is simply unpopular. For example, in 2012, Marek Mehanna was sentenced to almost two decades in prison for providing material support to al-Qaeda. Mehanna’s “material support” was translating documents that were pro-jihad, which is well within his First Amendment rights.
The material support statute can also be used to criminalize speech on social media, with investigators using any post that is favorable to an extremist group to build a case for charges of material support to terrorism. Civil liberties groups, including the BORDC/DDF, have had to repeatedly reiterate that it is not a crime to post or share propaganda on social media.