Punishing Speech Just Got Easier

Americans must be ever vigilant that, in the name of combating terrorism, we don't also undermine our vital liberties.

That's why we're troubled by the U.S. Supreme Court decision last week that upheld banning even clearly nonmaterial support to groups the government considers terrorist organizations. In Holder v. Humanitarian Law Project, Chief Justice John Roberts wrote for the majority in the 6-3 decision, "At bottom, plaintiffs simply disagree with the considered judgment of Congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization."

The case had three major elements, Erwin Chemerinsky told us; he's the founding dean of the UC Irvine School of Law. The first issue was whether the statute in question, defining assistance to terrorism, was vague. All nine justices thought it was not.

Second was "what degree of knowledge" someone might have to be considered as aiding terrorist groups, Mr. Chemerinsky said. "Do they intend to further a group's goals? Or do they just know that the group performs terrorist acts? The Supreme Court said "knowledge is sufficient" to invoke the statute.

The third element is the one that brought dissent from three justices: Can speech count as material support? The court's majority ruled that it does, even if such support, such as giving classes on the nonviolent achievement of goals, was completely separate from material support.

"I agree with the dissenters," Mr.

Chemerinsky said. "Speech should not be punished unless there is a more clear danger of imminent harm. The court ruling makes it much too easy to punish people for their speech activities."

We also agree. For example, the Kurdish separatist group cited in the case, the P.K.K., has committed terrorist bombings and killings in Turkey. But much of that has been in response to Turkish military attacks on Kurds that have killed as many as 20,000 people since the mid-1980s. Wouldn't it make sense to allow Americans to encourage the Kurdish groups to find nonviolent ways to settle disputes?

The Bill of Rights already has been weakened by provisions of the Patriot Act and other anti-terrorist laws. This high court decision could well be another blow as we see how it is applied going forward. Our fear is that, if the Bill of Rights is weakened too much more, there won't be anything left.

The rule of law should at least have meanings that are clearly stated. That's why we agree with a unanimous U.S. Supreme Court ruling last week that greatly reduced the latitude of federal prosecutors in corruption cases.

At issue was a federal law that made it illegal "to deprive another of the intangible right of honest services." The words themselves are obviously vague. What's "intangible" supposed to mean? If an executive or politician cooked the books or took bribes, clear evidence should be obtained. Prosecutors should stick to the facts, not speculations.

REPRINTED FROM THE ORANGE COUNTY REGISTER.

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