Forum Post: Defense Authorization, First Amendment, and the Supreme Court's 2010 no talking rule case

In 1996, Congress overwhelmingly passed, and President Clinton signed, the Antiterrorism and Effective Death Penalty Act of 1996. This act made it a crime to provide "material support" to groups on the terror list.

When this law passed, the Humanitarian Law Project sued the government for a ruling that this law was prima facie unconstitutional. The Project was forced to give up its counseling to oppose terrorism, as it was not willing to risk that its counselors could face decades in prison for doing so.

During the long pendency of this case, there was much concern by supporters of this anti-speech law that the law may be ruled unconstitutional. Much tinkering was done, including changes made in the Bush Patriot Act.

Finally, in 2010, just a few months after the notorious Citizens United case that repealed over 100 years of regulations along with generations of Court precedents, that essentially declared Corporations First Amendment 'Persons,' and that allowed unlimited electioneering run by the Corporations themselves, the Court next released this First Amendment decision.

In Humanitarian Law Center v. Holder, which contrasted markedly from the Citizens United decision just a few months earlier, the Court ruled that human 'persons' do not have Constitutional rights to counsel so-called terror groups to give up terrorism and use legal means to complain of grievances because, in the words of Chief Justice John Roberts, 6-3 decision, this could give these organizations "legitimacy."

In other words, you are now subject to long prison sentences if you talk to those whom are deemed terror groups, even if you want to tell the groups to give up terror. This is no exaggeration. Effectively, we now have a no talking rule for human persons. http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf

Note that Humanitarian Law Center was a 6-3 decision, whereas Citizens United was 5-4. The additional Justice who signed onto this unbelievable violation was John Paul Stevens, the very one who wrote the dissent in Citizens United, on the very last day of his last term in office.

The current provisions of the Defense Authorization were designed to build upon the opinion in Humanitarian Law Project case, to try to guarantee that the Supreme Court will uphold these new provisions.

Emboldened by this case, the Defense Authorization provisions take the next step and require the Executive to imprison those talking to so-called terror groups, without trial, or after acquittal from trial, in secret locations, without attorneys, and violate other due process rights.

The current discussion between Congresspeople and the White House is over who gets the make the decision.