Remember what freedom of speech was like before Sept 11, 2001? Today it's different, and it's worth pondering the place we've arrived and why. Today you can be arrested for wearing the wrong T-Shirt to specific events, such as attending a speech by the President while a shirt bearing a statement in support of Islam, or critical of the U.S. Government. Many such as myself were wary of the patriotism and flag-waving following Sept 11, 2001 because this sort of nationalistic fervor has been behind atrocities committed by other countries in the past. And the "either you're with us or against us" tone of the Bush Administration may have been useful in corralling support from other governments, but when it was applied to the American People it has turned into a pattern of repressing freedoms of Americans to do things like exercise free speech and other rights that make America what it is.
That's the tone of a Salon.COM article posted yesterday, on Sept 10, 2011 (the eve of 9/11's 10th anniversary), an article that focused on how the Bush and Obama administrations have taken strong measures to criminalize our right to free speech.
Prosecutors, since Sept 11, 2001, have been aggressively using a pre-existing law criminalizing "material support" for designated terrorist groups. The U.S. State Department is in charge of designating these groups, and it would be a concern worthy perhaps of criminal penalties for significant aid to actual terrorist groups. There are other examples that could be an example of aggressive government that limits our freedom, but the Salon.COM article (linked below) focuses on a specific example.
What's worrying however is that "terrorist group" is broadly defined, one persons terrorist is another persons freedom fighter, and so to is "material support" broadly defined.
What is most problematic about the law, though, is "material support" has been interpreted so broadly. It is used regardless of whether the provider has the intent to support terrorism, or whether any specific act of terrorism has taken place or is being planned, and even to include pure speech and advocacy.
The Salon article references the case of Jubair Ahmad who was recently convicted of "material support" for Lashkar-e-Taiba (LeT) because he uploaded a video to YouTube. The Salon article doesn't go into what kind of group LeT is, nor the type of video, but it does seem the act of uploading a video is very small in terms of "material support".
How and how much has this statute been used in the decade since Sept. 11?
The law is widely used "in suspected terrorism cases" in both federal courts and military commissions. In the Lashkar-e-Taiba it was used to prosecute what would normally be a First-Amendment-protected-activity (freedom of speech).
Is this a post-9/11 law?
The law existed before Sept 11, 2001. However it's use and interpreted has changed dramatically since that date.
The Supreme Court held in a 1969 case called Brandenburg v. Ohio that even advocacy of violence can be criminalized only when it is intended to result in imminent criminal conduct and if it is likely to produce imminent criminal conduct.
In other words, before Sept 11, 2001, there was acknowledgement that speech the government disagrees with is itself part of the marketplace of ideas that is protected by the First Amendment. A common phrase about this goes something like: "I may hate what s/he says, but I will fight for his/her right to say it". That's one of the core principles of the U.S. but is that what our government is practicing today?
Advocacy and freedom of speech can serve as a safety valve so that people can let of steam before their anger escalates to committing acts of violence.
A Supreme Court case last year held for the first time that the Government can criminalize speech, even speech advocating lawful activity. The case was Holder vs. Humanitarian Law Project (that is, Attorney General Holder). Its result, stated by Salon.COM, is to thwart the efforts of humanitarian groups to persuade violent organizations in renouncing their violence.
What were the facts of that Holder v. Humanitarian Law Project case?
Human rights groups wanted to assist two groups (Kurdistan Workers' Party in Turkey and Liberation Tigers of Tamil Eelam in Sri Lanka) by teaching them the ropes of bringing human rights claims to the United Nations. Their goal was to teach International Law and nonviolence, hoping to promote peace. The U.S. designated both as terrorist groups. The Supreme Court declared that promoting peace among terrorist groups violates the material support law.