Disregarding the dictionary as well as the Constitution, the Supreme Court ruled Monday that advising foreign terrorist groups to pursue their objectives peacefully amounts to "material support" of their violent activities. The 6-3 ruling blurs a distinction that Congress needs to sharpen in the interest of free speech.
The ruling is a defeat for two groups of activists that want to engage in so-called peace building. One is a collection of organizations supportive of the humanitarian and political activities of Tamil separatists in Sri Lanka. The other, headed by USC professor Ralph Fertig, wants to advise the Kurdistan Workers' Party on how to take its grievances against Turkey to the United Nations.
Writing for the court, Chief Justice John G. Roberts Jr. concluded that such efforts violate a law making it a crime to "knowingly provide material support or resources to a foreign terrorist organization" designated by the State Department. But that is an unconvincing reading of the statute, and one that offends the Constitution.
"Knowingly" in this context can be read in two ways, but one is truer to the 1st Amendment — namely that the advisor knows not only that a group he is dealing with is a terrorist organization but that his involvement will further acts of terrorism. As for "material support," the law contains several common-sense definitions including financial assistance, explosives, lodging, communications equipment and "expert advice or assistance."
The Obama administration, however, interpreted the last term to encompass the sort of advocacy the plaintiffs in this case wanted to engage in. Roberts endorsed that interpretation and said that providing even "seemingly benign services" to a terrorist organization "bolsters the terrorist activities of that organization" by making it easier for the group to recruit members and raise funds.
A sounder interpretation was offered by Justice Stephen G. Breyer in his dissenting opinion. Because all of the activities planned by the plaintiffs involved the communication of ideas and lawful political change, he wrote, the law should be interpreted as criminalizing speech and association otherwise protected by the 1st Amendment "only when the defendant knows or intends that those activities will assist the organization's unlawful terrorist actions."
Congress should make it clear that it agrees.