Adam Liptak has a very useful article about an upcoming challenge to a provision of the Patriot Act. The challenge concerns the provision that makes it illegal to provide "material support" to terrorist organizations. While applications such as bans on providing weapons can easily pass constitutional muster, the definitions of assistance offered by the statute arguably reach constitutionally protected speech as well as conduct that the government can ban. In the case of Ralph Fertig, the 9th Circuit Court of Appeals held that the sections of the act that make it illegal to provide "service ... expert advice or assistance ... [or] personnel" to a designated terrorist organization were unconstitutionally vague.
It is hard to predict how the Supreme Court will view the First Amendment issues at stake here. Historically, the First Amendment precedents involving dissenters are not encouraging, but since the Cold War, libertarian free speech principles have become much more firmly entrenched across the ideological spectrum. Part of me thinks that we could see the Antonin Scalia who voted to strike down bans on flag-burning; another part thinks that conservatives who believe that students can be exempted from First Amendment protections over a silly banner will have no problem exempting perceived supporters of terrorism from constitutional protection. This will be an oral argument very much worth watching.
--Scott Lemieux
