UC Davis

The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September 11 attacks reveals continuing and unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms. Yet the courts have barely begun to acknowledge, much less address, these serious issues. In the Supreme Court’s only sustained engagement with these problems, the 2010 decision in Holder v. Humanitarian Law Project, the majority largely avoided the hard questions by simply asserting that 18 U.S.C. § 2339B, the federal statute forbidding the provision of material support to foreign terrorist organizations, does not directly burden either the freedom of speech or freedom of association. Lower courts have performed even more poorly, generally rejecting powerful speech and association claims with bare assertions that “there is no First Amendment right...to support terrorists.”This article has taken as its major goal identifying and analyzing the First Amendment issues raised by the domestic War on Terror, focusing especially on the role of freedom of association in this context. Freedom of association has historically been a critical and basic First Amendment right, central to the process of democratic self-governance that the First Amendment protects. The right of association is also deeply implicated in many domestic terrorism prosecutions, since the essence of those prosecutions is an act of association, often combined with speech. Finally, the judiciary’s bare assertions that “material support” or financial contributions do not constitute association cannot be sustained given both first principles and well-developed law outside the context of terrorism. In short, in this area the courts have failed in their basic job of honestly engaging with the law.Ultimately, however, I conclude here that there does exist a clear, textually and historically justifiable basis for limiting constitutional protections for terrorist and other violent groups. The principle derives from the textual roots of the freedom of association, which lies in the Assembly Clause of the First Amendment. The Assembly Clause, unlike the Free Speech Clause, explicitly protects only a right “peaceably to assemble,” and so excludes violent groups. This simple principle, completely missed by the courts, serves to reconcile most terrorism prosecutions with the First Amendment. It cannot, of course, resolve all issues, especially when a prosecution is based primarily on speech not association, but it does much of the work. There also remain some difficult and complicated issues of definition and implementation, on which I provide some thoughts. But the basic argument advanced here is quite simple: the freedoms of association and assembly protect only peaceable association and assembly; and terrorists are not peaceable.