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It's not about speech

The high court is right: Prosecuting alleged contributors to a `terrorist' group isn't a 1st Amendment issue.

January 22, 2007

THE SUPREME COURT has rightly refused to block the trial of seven Los Angeles residents accused of contributing funds to an Iranian opposition movement that the State Department has branded a terrorist group.

The high court let stand a ruling by the U.S. 9th Circuit Court of Appeals that prosecuting the defendants -- who are innocent until proved guilty -- posed no 1st Amendment problem. As Judge Andrew J. Kleinfeld pithily put it: "Sometimes money serves as a proxy for speech, and sometimes it buys goods and services that are not speech. Guns and bombs are not speech."

In 1997, then-Secretary of State Madeleine Albright designated the Marxist group Mujahedin Khalq, or MEK, as a "foreign terrorist organization," a designation reaffirmed in 1999. Formed in the 1960s to oppose the rule of the shah of Iran, MEK now opposes the Islamic regime in Tehran and, according to the State Department, engaged in terrorism against Iran between 1997 and 2001.

Under the 1996 Antiterrorism and Effective Death Penalty Act, it's a crime to knowingly provide material support to an organization that appears on the State Department's list. The defendants in the Los Angeles case are accused of soliciting donations for MEK in Los Angeles and of wiring at least several hundred thousand dollars to an MEK bank account in Turkey.

The truth of those allegations is a matter for a jury. What the defendants sought from the 9th Circuit was a ruling that their prosecution violated the 1st Amendment because of flaws in the way MEK was designated a terrorist organization.

Yet, as Kleinfeld noted, MEK's own description of its activities supported the terrorist designation. The designation was on the books when the defendants allegedly contributed to the group. More to the point, as the Supreme Court has recognized in upholding restrictions on contributions to election campaigns, money cannot always simplistically be equated with speech even in a domestic context. The "money is speech" mantra makes even less sense when the money buys guns.

Of course, the State Department should use care in designating a group as a terrorist organization. Such designations can be challenged though not ignored. Individuals accused of providing such a group with material support shouldn't be able to substitute their judgment for the department's any more than consumers should be able to substitute their judgment about a dangerous drug for that of the Food and Drug Administration. Neither case is a free-speech issue.

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