Abstract
Americans cherish the right to free speech perhaps above all others. Uninhibited expression fuels our democracy, and it is conventional wisdom that an unregulated marketplace of ideas promotes sounder policy. And yet, in times of crisis, our government too often suppresses the right to free speech.
In the frenzied aftermath of 9/11, Congress passed, and President George Bush signed, the Patriot Act. Among other things, the Act expanded the laws criminalising the provision of ‘material support’ to ‘foreign terrorist organisations’. The list of ‘foreign terrorist organisations’ is generated by the Secretary of State with virtually no meaningful oversight. And the government has interpreted ‘material support’ to encompass even speech intended to further peaceful and lawful alternatives to violent protest.
Last year, the Supreme Court upheld the government’s sweeping interpretation of ‘material support’ in the Holder v Humanitarian Law Project case. In the case, humanitarian organisations proposed to advise several designated ‘foreign terrorist organisations’ – including the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam – how to peacefully resolve disputes and to petition the United Nations for relief. In a divided opinion, the Court affirmed the government’s authority to criminalise this speech.
In the years since 9/11, the government has not hesitated to prosecute pure speech as ‘material support’. Tarek Mehanna, a resident of Massachusetts, was recently convicted of conspiring to provide such support by translating extremist videos and texts freely available online. Javed Iqbal pleaded guilty to providing ‘material support’ to Hezbollah by providing broadcasts from Hezbollah’s television station (along with Christian channels and adult entertainment) to American customers. And Sami Omar al Hussayen was prosecuted for (although ultimately acquitted of) supporting terrorism by moderating an email group that discussed, among other things, violent jihad.
Not all threats to free speech are so direct. Since 9/11, the US government has developed the ability to monitor virtually all electronic communications of Americans and Congress has handed broad authority to the executive to use that ability to sweep up vast swaths of our international communications. The ability to dissent through confidential communications may very well be chilled by the government’s latest surveillance efforts.
If there is reason to be hopeful, it comes from the oft-cited reflections of Justice William J Brennan, Jr on ‘the shabby treatment civil liberties have received in the United States during times of war and perceived threats to its national security’. Justice Brennan noted the cyclical nature of the nation’s response to traumatic events: after each crisis had abated, the country had ‘remorsefully realised that the abrogation of civil liberties was unnecessary’. Though he hoped that these successive realisations would eventually fortify the collective conscience against such overreactions, he took some comfort in the apparent inevitability of national self-correction.
Can we be so sure that we will self-correct this time? A decade on from the crisis that drove politicians to once again stifle unpopular speech (albeit in the quest to prevent unlawful conduct), fear still pervades our politics. And unlike past overreactions, where the targets of our policies were our neighbours, the modern-day victims of our overreaching policies are largely faceless and voiceless in the national debate.
Still, there is reason for hope. In a series of cases challenging the worst abuses of the post-9/11 era, a handful of jurists have signalled a willingness to question, rather than defer to, the claim to a national-security override to civil liberties. Some politicians have suggested a desire to reassess the United States’s war footing in light of the apparent hobbling of al Qaeda’s leadership. There is hope, perhaps, that these doubts will mature into the self-correction predicted by Justice Brennan, and that the speech restrictions following 9/11 will be viewed as the latest Sedition Act. To achieve that goal, however, Americans will have to join these courageous voices of dissent and demand that our leaders respond to the challenges of national security with the recognition – demonstrated time and again – that our values are the very foundation of our strength and safety. ❒