Ending a nearly twelve year legal odyssey, the SCOTUS has ruled that in some circumstances the government can restrict and punish speech directly connected with a terrorist group even if the intent of the speech is to advance and enable peaceful activity. The six justices who ruled with the majority were all appointed by Republican presidents, while the three dissenting were all appointed by Democratic presidents. Elections have consequences.
So long as Americans persist in electing Republican presidents, they will see their freedom slowly crushed. As for Obama’s desire to keep such inherited power as the Executive has been delegated by Congress and now sanctioned by the Supreme Court, it is the view of many constitutional scholars that this is the proper function of an Executive, to follow and defend laws as passed by Congress and signed into authority by a president; only when revoked by Congress or overturned by the Supreme Court should that delegated authority be abandoned.
As he has with federal marijuana laws, for instance, Obama has been sparing in his use of the power of this law to indict on the basis of speech alone. Those expecting more from Obama than de-emphasizing enforcement of certain aspects of certain laws fail to grasp the scope of the constitutional forces at play and the need to maintain a rational balance between them. An Executive that would selectively abandon legitimately formulated laws entirely is no Executive at all, but rather a dictatorship.
The precise definition of the scope of the subject “speech” is the key element here, and goes to intent. Not all speech is protected; the classical example is falsely crying “Fire” in a crowded theater. If the intent is to help facilitate or provide cover for advancement of criminal activities by a terrorist group, then it can reasonably be argued that government has the right to restrict and punish it. If however the speech is intended to transform a terrorist group into one operating within non-criminal societal norms, then the speech should be protected and free from government interference.
Trying to suss out the intent is the hard part, and I am not persuaded that this law does so with sufficient precision and regard for protection of legitimate speech. This ruling places the burden for defining that boundary on the people when it should be the responsibility of Congress to formulate language sufficiently clear that anyone can understand it; I disagree with that finding as well.
An earlier United States Congress that passed the original bill and subsequent modifications, the previous president who signed it all into law and six of nine Supreme Court justices see it otherwise. Democracy is a messy business at best, and sometimes these sorts of mistakes are made. This law and this SCOTUS ruling are the result of a forty year trend in America towards an overt Reactionary agenda, and the effects are not yet fully felt. We will see worse, before we see better.
That less than 20% of the eligible voters have bothered to turn out for this season’s primaries does not bode well for a positive change. If 4/5 of Americans are willing to let the substantially fanatical other 1/5 decide what options they will have for the fall elections, how can we ever expect to make any progress?
The answer lies in Get Out The Vote. If Liberals and Progressives and whatever anyone on the Left wants to call themselves actually seek to make a change in the direction of the country, we will have to figure out how to get the rest of the eligible voters to engage and participate. Leaving the democratic process in the hands of a few, regardless of their motivation, is a plan for disaster.
Transcript is here. [pdf]
NOTE: The headline on an Associated Press article discussing this ruling reads
High court upholds anti-terror law prized by Obama
An equally accurate headline might have read
High court upholds anti-terror law enacted under Bush
but that wouldn’t have helped drive a wedge between Obama and the Left, whose support he and the Democrats will need to fend off Republican advances in this fall’s elections. AP never misses a chance to stick it to Obama and the Democrats; anything to advance the power of the Republican Party.