Just when I thought interpretations of the prohibition on material support of terrorism had gotten about as extreme and counterproductive as possible, a new example cropped up. A group called Christians United for Israel (CUFI) has launched an online campaign demanding that Twitter ban Hamas from operating Twitter accounts. It is also copies “the local office of the United States Attorney on this e-mail so that they can weigh appropriate legal measures in the event that you continue to permit terrorists to use your services.” In other words, it pushes for criminal prosecution of Twitter under the material support statute, claiming that the Supreme Court’s 2010 decision in Holder v. Humanitarian Law Project would support such a prosecution.
While this over-the-top interpretation of the law left me speechless, Georgetown law professor David Cole and ACLU Legislative Counsel Gabe Rottman were not so afflicted. Some good quotes from Prof. Cole’s column in the Daily Beast and Rottman’s blog are set out below. They lay out the constitutional, legal and practical reasons why CUFI’s interpretation of the law is off-base. (I’d like to note here that I fully support CUFI’s right to conduct this campaign and speak out on issues relating to Israel, Hamas or any other topic it desires to be heard on. Some honest debate about the scope of the material support prohibition may lead to some much needed clarification or reform.)
First, Cole acknowledges the extremely broad scope of the law after the Supreme Court’s HLP decision. He says:
The group may have a point. The “material support” law is written so broadly that it makes virtually anything one does to or for a designated group a crime, even if it has no link to terrorist activity of any kind. In fact, in a case I argued in the Supreme Court two years ago, the government argued that advocating for human rights and peace in coordination with a designated group was a crime under the law. The Supreme Court agreed, and rejected our argument that such activity is protected by the First Amendment.
But why stop at Twitter? What about Google, Facebook, or Verizon, all of which have almost certainly provided their “services,” in the form of google searches, social networking, and phone and email access, to Hamas or its members. For that matter, what about Pepsi and Coca-Cola, who have surely sold soda bottles to Hamas in the Gaza Strip? What about Exxon Mobil and Shell Oil, whose gas has very likely powered Hamas vehicles? And what about public radio and CNN, whose news services are available around the world, including in Gaza?
But Rottman points out key limitations in the Court’s ruling that suggest Twitter has not run afoul of the law, saying:
Fortunately, there may be two counterarguments based on limiting language in Humanitarian Law Project. First, the Supreme Court there made it clear that independent advocacy, even if in support of the ends of a terrorist group, would not be material support. The Court reasoned that the definition of “service” in the statute requires something done at the command of another. So, in the context of providing “communications equipment,” one could argue that the “service” has to be something like renting a satellite phone (not passively providing data and hosting services). For de facto common carriers like Twitter, open to all, the provision of service is not “coordinated” in the way the Court seems to argue is necessary, and it certainly does not suggest “support” in the sense of concerted activity in furtherance of the goals of the designated terrorist organization.
Second, the decision limits itself narrowly to the facts of the case (namely, direct political and humanitarian guidance), and notes that not every application of the material support statute will survive First Amendment scrutiny.
Both authors note an interesting legal issue involved in the Twitter situation. Cole notes that:
Twitter is for all practical purposes a “common carrier,” providing its service to all comers. Would we hold a telephone company responsible for allowing a gang to use its phone lines to plan a crime, or the Postal Service responsible for delivering a package of drugs?
Rottman notes the issue not a simple one, saying Cole is:
absolutely right, but the scary caveat there is “for all practical purposes.” Practically doesn’t mean legally, and Twitter is not legally classified as a common carrier under telecommunications law. Further, the various laws governing intermediary liability on the internet wouldn’t trump criminal material support for terrorism.
Rottman notes the bottom line for all of us:
But the fact that the plain language of the statute could even conceivably reach Twitter in this context shows why the law is arguably the most dangerous speech restriction on the books today, and why the Supreme Court’s decision in Holder v. Humanitarian Law Project was such an unfortunate departure from the Court’s relatively positive track record on controversial speech. Say what you will about Hamas, but I don’t think it benefits American public discourse to censor their Twitter feed, nor do I think merely providing Hamas with an outlet furthers their organizational goals (and, indeed, may do the opposite for many who find their views repellent).
Cole suggests a way out of this legal mess:
The more appropriate campaign should be directed at Congress, to amend the “material support” law to limit its draconian reach. Those who knowingly and intentionally support terrorist activity should be punished. But punishing those who advocate for peace or provide common carrier access to communications simply because they may happen to come into contact with a designated group is guilt by association. Let’s start a Twitter campaign to fix that.
Cole is right, and hopefully the 113th Congress will take a long, hard look at the law and set limits that protect the fundamental right of free speech and that are practical and reasonable. It can be done without condoning or allowing incitement to terrorist activity. After all, the Supreme Court’s ruling in the HLP case only meant that Congress can impose a very broad definition of material support, not that it must.