Material Support for Terrorism As Seditious Libel? A Review of The Law After Humanitarian Law Project With Attention to Originalist Principles
Federal statutes criminalizing the provision of material support to foreign terrorist organizations have become an important part of the U.S. government’s domestic effort to fight the global war on terror. And in a rapidly-evolving information age, the statutory prohibition of material support to terrorist organizations can often implicate constitutional free speech protections. The collision of government efforts to combat terrorism and fundamental free speech protections raises important questions about the scope of the government’s authority to regulate seditious speech and the original understanding of First Amendment rights. Focusing on the Supreme Court’s 2010 decision in Holder v. Humanitarian Law Project (hereafter “HLP”), 1 this Note surveys First Amendment jurisprudence related to the material support statute while drawing historical parallels to common law seditious libel.
Amended as a part of the U.S.A. Patriot Act in 2001, 18 USC §2339B (hereafter the “Material Support Statute”) criminalizes those who “knowingly provide[] material support or resources to a foreign terrorist organization,” 2 and further defines “material support” as “any property, tangible or intangible, or service.” 3 This capacious definition of material support gave rise to the central First
Amendment question in HLP: where does one’s constitutionally protected speech in support of terrorism end and criminal material support for terrorism begin? The Court held that the Material Support Statute did not violate the First Amendment since it served a compelling government interest in protecting national security by barring coordinated activity with foreign terrorist organizations. 4 HLP, which seeks to balance the interests of preserving public welfare in the face of foreign terrorist threats and protecting the individual right to free speech, represents a potential fork-in-theroad in First Amendment law. Following HLP, First Amendment scholars Alexander Tsesis and Eugene Volokh articulated strikingly divergent views of how the decision could alter First Amendment jurisprudence. 5 HLP could, on one hand, continue a long-standing policy of barring speech that harms public welfare, 6 or, on the other hand, open the door to a per se test7 that could further constrain the government’s ability to enact content-based restrictions on speech. 8
Though it is not entirely clear which path post-HLP First Amendment jurisprudence will follow, this Note highlights that the HLP decision potentially invites a restoration of the original understanding that common law seditious libel is not constitutionally protected. 9 This is significant because over the past half-century, the Supreme Court has constructed a more libertarian conception of free speech that leaves little room for free speech restrictions like seditious libel laws and material support prohibitions. 10 Because HLP makes room for an originalist turn in First Amendment law, it is important first to situate the decision in its proper historical context.
This Note is divided into four parts. Part I outlines the original public meaning of the First Amendment with respect to seditious libel as well as the shift to the Madisonian conception of free speech with respect to content-based restrictions. Part II analyzes the facts and the Court’s decision in HLP. Part III compares the reactions to HLP from Professors Volokh and Tsesis. Finally, Part IV examines the ways the lower federal courts have begun to address a few key questions left open by HLP.
