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Supreme Court ruling a blow to free speech, says Human Rights Watch

(Human Rights Watch/IFEX) - Washington, DC, June 21, 2010 - "The Supreme Court ruling on June 21, 2010, that organizations can be prosecuted under the material support for terrorism law for providing assistance to terrorist groups is a blow to humanitarian and human rights groups around the world," Human Rights Watch said today. The ruling said the organizations can be prosecuted even if the "support" is simply training or advice on how to aid peaceful or humanitarian actions.

The case, Holder v. Humanitarian Law Project, began in 1998 with a challenge by a retired judge as well as a doctor, a human rights organization, and several nonprofit groups to the federal law that makes it a crime to provide material support to terrorism organizations. Although the law contains a narrow exception for certain types of humanitarian aid, such as medical supplies, it criminalizes assistance by human rights groups or individuals seeking to encourage terrorist groups to pursue lawful objectives through peaceful means.

"The decision means that when warring factions ask for international assistance, an American organization has to think twice about whether it can help," said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "Throwing people in jail who are trying to create peace is a poor strategy for fighting terrorism."

Specifically, the law prohibits providing "training," "expert advice or assistance," "service," or "personnel" to designated terrorist groups. The plaintiffs alleged this infringed on their right to free speech protected by the US Constitution. In this case, activities such as training a listed group in how to use humanitarian and international law to resolve disputes peacefully, or teaching such a group how to petition the United Nations for relief were ruled activities that could be prohibited.

While the plaintiffs were never prosecuted, they alleged that they experienced a chilling effect from the statute and wanted to make sure that they would not face criminal prosecution for interacting with groups officially labeled as terrorists for the purpose of advancing peaceful goals.

Human Rights Watch joined the American Civil Liberties Union amicus brief, along with eight other conflict resolution and human rights groups, which argued that the statute could be used to prosecute these nonprofit groups if they worked with members of organizations designated as terrorist groups by the US to understand, respect, and apply international law to their conduct.

In its 6-3 ruling, the court concluded that the material support law does not violate the free speech clause of the First Amendment. Although the court acknowledged that certain types of conduct are peaceful and not intended to assist terrorism, it acknowledged the government's argument that such support could bolster a terrorist group's overall funding or lend it legitimacy. The dissent contested that the government's arguments justified restricting free speech.

The dissenting judges argued that the law unconstitutionally infringes on political speech, which is at the core of the protection of free expression, and that the government failed to show how providing training on peaceful activities could be construed as materially supporting terrorism. Moreover, by saying that a key factor was whether a humanitarian group's speech was "coordinated with" a terrorist organization, the court opened wide grounds for finding speech unlawful - even if a terrorist group engaged a lawyer to argue the lawfulness of its actions.

Human Rights Watch expressed concern that this ruling will limit the ability of humanitarian and human rights organizations to protect civilians and bring peace to conflict areas. Many organizations have a long history of working with terrorist groups to help bring about peaceful resolutions to conflicts. Among those fearful of being in violation of the material support statute are religious groups that provide training in nonviolence and reconciliation in Northern Iraq, Colombia, and the West Bank, and the Carter Center, which works on conflict resolution in Gaza.

"Human rights groups that work with terrorist organizations to protect human rights should not be at risk of prosecution," Prasow said. "This harsh interpretation restricts free speech and could do more harm than good."

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