Protecting Citizens and Their Speech: Balancing National Security and Free Speech When Prosecuting the Material Support of Terrorism

Abstract

Federal law criminalizes a variety of terrorist activities, including the use of violence or certain weaponry such as chemical or biological weapons. Yet, these laws do not provide prosecutors with the necessary tools to prosecute those terrorists who die in the attacks, evade capture. Nor does it empower law enforcement to go after the supporters of those committing acts of terrorism. Moreover, the nature of law and policy in the post 9/11 world implicates fundamental questions about strategy, tactics, criminal justice, and the ontological nature of the war on terror. Due in part to these challenges, Congress criminalized the act of providing material support to a designated foreign terrorist organization. Resulting laws and regulations have led to restrictions and limits on the freedom of speech. Looking to the First Amendment analysis of various campaign finance law challenges provides a comparable framework for addressing freedom of speech concerns in the context of national security. Moreover, borrowing from campaign finance law provides assistance in addressing obstacles faced by prosecutors, defense attorneys, and practitioners seeking to advise clients on their potential criminal liability.