The court on free and bought speech

The court on free and bought speech

In January, the Supreme Court ruled that corporations are entitled to the freedom of speech the Constitution affords U.S. citizens – and that, therefore, they may use unregulated amounts of money to try to influence elections.

This was a blank check for corporations to pack the highest offices in the land with people who would do their bidding. What if, for example, BP had put some of its millions (billions!) behind members of Congress who were up for election? The beleaguered (and reckless) company would be calling in its markers just about now. (Hmmm – maybe it is: Witness the “shakedown” quote – since apologized for – of Texas Rep. Joe Barton.)

Meanwhile, in a freedom-of-speech decision rendered on Monday, the court upheld a federal law that humanitarian groups may not “knowingly” provide “material support or resources to a foreign terrorist organization.”

Material support was defined as anything from funds to lodging to giving advice. Medicine and religious materials were exempted.

We agree with the Anti-Defamation League, which provided an amicus brief, that “[a]llowing money and resources to flow into a terrorist organization’s bank account for any reason whatsoever will help fund that organization’s terror activities. One cannot provide ‘humanitarian’ support in the form of training, expert advice or assistance, service, and personnel to a terrorist organization without helping their bottom line and facilitating violence, destruction, and murder.”

This is a truth you would think would be self-evident. But some commentators have been scrutinizing the fine print and declaring that the court has gone too far. The New York Times editorialized on Tuesday that, “[b]y preserving an extremely vague prohibition on aiding and associating with terrorist groups, the court reduced the First Amendment rights of American citizens.”

That’s an alarmist overstatement, but the ruling – and the country – would have profited if certain distinctions had been made.

According to the Times, “‘Money given for a charitable purpose might free up other money used to buy arms,’ Justice [Stephen] Breyer said from the bench. But the same cannot be said, he continued, ‘where teaching human rights law is involved.'”

Breyer also “proposed a standard that would criminalize this kind of speech or association ‘only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions.'”

Foreknowledge would be an important part of a prosecutor’s arsenal – and the lack of it might help the defense. At any rate, donors should arm themselves with information about the beneficiaries of their charitable gifts.


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