Terrorism and Associations

By Bhagwat, Ashutosh | Emory Law Journal, January 1, 2014 | Go to article overview

Terrorism and Associations


Bhagwat, Ashutosh, Emory Law Journal


INTRODUCTION

More than a decade has now passed since the attacks of September 11, 2001, fully inaugurated the Age of Terror. In the early years after the attacks, aside from the immigration sweep that followed immediately, U.S. antiterrorism policy was focused primarily on threats from abroad, including, notably, the wars in Afghanistan and (at least purportedly) Iraq. While those events raised some fascinating issues about the scope of executive authority1 and about the geographic reach of the Constitution,2 it was relatively rare that the individual liberties provisions of the Bill of Rights were directly implicated.3 In subsequent years, however, the federal government initiated a series of judicial actions, including criminal prosecutions, directed at alleged terrorists and supporters of terrorism within the United States.4 These actions have in turn generated a large number of constitutional disputes regarding the consistency of these legal claims with the Bill of Rights, especially the speech and association rights protected by the First Amendment. To date, the Supreme Court has had only one occasion to address these issues: its 2010 decision in Holder v. Humanitarian Law Project.5 In Humanitarian Law Project, the Court rejected a First Amendment challenge to 18 U.S.C. § 2339B(a)(1), the so-called material-support statute, which bans the provision of material support to designated foreign terrorist organizations.6 The Humanitarian Law Project decision, however, did very little to clarify the law regarding the interaction between First Amendment rights and antiterrorism measures; indeed, the decision, if anything, increased the already high levels of confusion and uncertainty.

Despite the lack of guidance from above, the lower federal courts have, of course, necessarily confronted and resolved many First Amendment issues in the context of terrorism prosecutions. These cases and disputes are discussed in more detail in Part II of this Article, but the bottom line is clear: the First Amendment has been irrelevant. Lower courts have not only consistently rejected First Amendment defenses, they have generally dismissed them as insubstantial. A closer look at these cases demonstrates, however, that under current law, the First Amendment claims in these cases, especially those brought under the freedom of association, are in fact quite weighty. Courts have avoided them only by contorting doctrine and, in some cases, accepting arguments that are grossly inconsistent with First Amendment law in other factual contexts. In short, the War on Terror has forced the courts to twist the First Amendment into a pretzel.

In this Article, I aim to abate some of this confusion and to build a sustainable framework within which First Amendment challenges to antiterrorism measures can be evaluated. My focus is on freedom of association, though in the course of discussing association issues, I necessarily have to consider some related free speech issues as well-indeed, one of my main points is that speech and association issues are deeply entangled in these situations, and contrary to the way courts treat them, must be considered together.7 As I suggested earlier, my conclusion is that the associational claims raised in this area are far from insubstantial; indeed, under extant doctrine, many of them are probably valid. Nonetheless, I conclude that the courts have probably been correct to reject most (though by no means all) of the First Amendment challenges to antiterrorism prosecutions. The problem is that the courts are doing this for the wrong reasons, twisting doctrine to reach intellectually unsustainable conclusions. The downsides to this approach- other than rule-of-law concerns-are that first, it leads courts to reject even some legitimate claims; and second, it threatens to undermine First Amendment rights in other areas.

I conclude by arguing that instead of ignoring individual associational rights or narrowing their scope in indefensible ways, courts should focus their attention on what kinds of associations, what kinds of groups are protected by the First Amendment, and more particularly, whether certain kinds of organizations may be categorically excluded. …

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