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    :: Monday, June 21, 2010 ::
    Free speech aspects of the case:

    1. Contrary to gov't's contention, this is not O'Brien; the restrictions are content-based, therefore it's Cohen/Texas v. Johnson.

    2. However: "It is not difficult to conclude as Congress did that the 'tain[t]' of such violent activities [as PPK and LTTE have engaged in] is so great that working in coordination with or at the command of the PKK and LTTE serves to legitimize and further their terrorist means."

    (Cite: “[I]nvestigators have revealed how terrorist groups systematically conceal their activities behind charitable, social, and political fronts.” M. Levitt, Hamas: Politics, Charity, and Terrorism in the Service of Jihad 2–3 [2006].)

    It might seem that 2 cancels out 1, and that Congress's ability to restrict speech is limited only by its own imagination as to how speech might aid terrorists, perhaps supported (or even extended) by academic eggheads' or Beltway bandits' research. But the Court makes it clear that such is not the standard; the standard, rather, is coordination with terrorist organizations duly labelled as such by fair procedures:
    The dissent argues that there is “no natural stopping place” for the proposition that aiding a foreign terrorist organization’s lawful activity promotes the terrorist organization as a whole. Post , at 10. But Congress has settled on just such a natural stopping place: The statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization. Independent advocacy that might be viewed as promoting the group’s legitimacy is not covered.


    [W]e in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations. We also do not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations.

    :: David M. Wagner 4:53 PM [+] ::

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