The fungibility of criminal guilt and political association: First Amendment rights, the Liberty City Seven and the Material Support Provision of the AEDPA

Abstract

The prohibition on ‘lending material support’ to terrorist organisations in the Material Support Provision (MSP) of the Anti-Terrorism and Effective Death Penalty Act allows courts to circumvent established First Amendment jurisprudence and violate freedom of speech and free association. While on its surface, the MSP may not abridge First Amendment rights, it is not limited in scope. For example, the MSP functions in conjunction with the designation procedure that grants the executive the power to decide which organisations are ‘terrorist’ and which are not. The Liberty City Seven case is illustrative: the defendants were prosecuted and convicted for engaging in First Amendment activity despite the fact that their alleged violations of the law never threatened any imminent lawless action, nor reached any point where they were likely to do so. This article analyses the MSP’s impact on First Amendment protections by assessing the rational government purpose argument, and the government’s ‘fungibility’ argument – that any support to a designated foreign terrorist organisation advances its illegal goals because all forms of support are ‘fungible’. This article concludes that the MSP’s scope should be narrowed so that it cannot reach political speech or associative conduct devoid of true criminal act or intent.