More than half a century later, Ann Fagan Ginger has no intention of forgetting the pain and toll of the McCarthy era. Fear and suspicion of communism forced her husband's resignation from a coveted Harvard University faculty position, led her to give birth shortly afterward as a hospital charity patient and eventually contributed to Ray Ginger's death from acute alcoholism.
"It ruined marriages, careers and relationships of all kinds," said the 84-year-old lawyer-activist, who founded and directs the Meiklejohn Civil Rights Institute in Berkeley, Calif.
The fact that so many people have forgotten that period and so many youths have no knowledge of it, she said, spurred her to sign onto an amicus brief in a U.S. Supreme Court case raising the specter of a similar era -- one driven by fear of terrorism.
Ginger is one of a number of McCarthy-era victims and their survivors supporting the First Amendment speech challenge to a federal law prohibiting "material support" of designated terrorist organizations.
Holder v. Humanitarian Law Institute, to be argued Feb. 23, draws the Supreme Court back into the war on terrorism following its most recent ruling in 2008 in Boumedienne v. Bush.
The material-support ban, which carries stiff criminal penalties for violators, has ignited sharply differing views across a wide range of groups, scholars and former government officials. But they nearly all agree it is now the "charge of choice" in federal prosecutors' fight against terrorism since the Sept. 11 attacks.
The United States has charged approximately 150 defendants with violations of the material-support statute since 2001, and to date about 75 defendants have been convicted, according to the Department of Justice.
To the McCarthy-era amici and other amici groups such as the Carter Center, Christian Peacemakers and the Constitution Project, the material-support statute imposes guilt by association and punishes nonviolent advocacy.
"Just because the material-support law is the tool of choice doesn't mean it's right," Fagan said. "When we adopted the Constitution, we said freedom of speech was the best answer to terrorists of that time."
However, to the Anti-Defamation League, some former military leaders and former government officials, such as Edwin Meese and John Yoo, there is little, if any, "good aid" to terrorist organizations.
"If we were talking about McCarthyism, I would be happily filing a brief on their side," said Peter Margulies of the Roger Williams University School of Law, who assisted in an amicus brief supporting the government on behalf of a group of scholars and former public officials with terrorism-related experience. "We're not talking about speech here, but conduct. When the petitioners say they want to help the Tamil Tigers get tsunami assistance, that's not different from giving them cash."
The high court case is "by no stretch a slam dunk" for either side, predicted terrorism scholar Stephen Vladeck of American University Washington College of Law, who is not involved in the case. "What's fascinating about this case is it raises what may be the outer limits of what the law allows and what the First Amendment prohibits."
TOO VAGUE?
In the high court, David Cole of Georgetown University Law Center represents the California-based Humanitarian Law Project and other groups and individuals in his capacity as a volunteer attorney with the Center for Constitutional Rights. The Law Project, he said, wants to continue to assist the Kurdistan Workers Party by training it in how to bring human rights complaints to the United Nations and advocating on behalf of Turkish Kurds. Its work ended in 1997 when the secretary of state designated the party a terrorist organization.
His other clients sought to work with the Liberation Tigers of Tamil Eelam in Sri Lanka by providing training in the presentation of claims to mediators and international bodies for tsunami-related aid and offering legal expertise in negotiating peace agreements between the Tigers and the Sri Lankan government. The Tamil Tigers also were designated a terrorist organization in 1997.
The United States, in its high court brief, said the Kurdistan Workers Party, since its inception in 1974, has waged a violent insurgency that has claimed more than 22,000 lives. The Tamil Tigers, founded in 1976 to create an independent Tamil state in Sri Lanka, used suicide bombings and political assassinations in its campaign for independence.
"The core of what our clients wanted to do was pure speech promoting lawful, nonviolent activities," Cole said. "Our First Amendment complaint is that the material support provisions penalize speech and association."
Two sections of the 1996 Antiterrorism and Effective Death Penalty Act authorize the secretary of state to designate "foreign terrorist organizations" and make it a crime to knowingly provide material support to those organizations, with the exception of religious or medical assistance.
At issue in the high court case are the law's prohibitions on training, expert advice or assistance, service and the provision of "personnel." The latter includes any person who works under an organization's "direction or control," but excludes persons acting "entirely independently" of the group.
The 9th U.S. Circuit Court of Appeals held in 2007 that the prohibitions were unconstitutionally vague as applied to Cole's clients. It rejected their claims that the law imposed guilt by association in violation of the First and Fifth amendments. Both Cole and the government filed petitions for review with the Supreme Court.
SPEECH OR CONDUCT
In the high court, Solicitor General Elena Kagan, who will oppose Cole in oral arguments, contends the statute's requirement that someone "knowingly" provide material support to a designated terrorist organization "diminishes any vagueness concerns." The challenged terms, such as "training," her brief says, "rest on simple distinctions that are readily understood by persons of ordinary intelligence."
The government also argues that the law regulates conduct, "only incidentally affecting speech." Because it regulates conduct, it is subject to intermediate, not strict, constitutional scrutiny, under U.S. v. O'Brien.
"The statute easily survives such scrutiny because it is narrowly tailored to advance important governmental interests unrelated to the suppression of petitioners' expression," Kagan argues. "Finally, the statute does not infringe associational rights, because it does not prevent petitioners from joining or otherwise associating with foreign terrorist organizations."
Cole countered that, during oral argument before the 9th Circuit, the government said his clients would violate the statute if they filed an amicus brief for the Tamil Tigers, advocated on the group's behalf before the United Nations, asked Congress to grant them an exemption from the statute or provided advice on how to mediate disputes.
"The government argues, even if the aid cannot be transformed into illegal ends, anything you do that buttresses the legitimacy of the terrorist organization is problematic because, in the long term, it allows the organization to gain support and further its terrorist ends -- that's the broadest argument," Cole said. "The response is it's not a permissible goal under the First Amendment to cut off speech because you don't like the message."
He argues that O'Brien does not apply because speech, not conduct, is being regulated. On the association issue, Cole said, "The very same advocacy we seek to do is permissible if done in conjunction with the Palestinian Liberation Organization but not the Kurdistan Workers Party. That violates the right of association as does the personnel prohibition."
In their amicus brief, the Carter Center and peace groups contend that effective advocacy for peace often requires direct persuasion and lobbying of groups or individuals who engage in violence to choose nonviolent means to achieve their ends.
Like Cole's clients, said their counsel, Melissa Goodman of the American Civil Liberties Union, they are "left hopelessly guessing -- at the risk of grave penalty" whether their work "crosses the line from constitutionally protected to criminally proscribed."
But Margulies, who supports the government, countered, "Look at the statute pragmatically. Congress said it didn't want to violate the First Amendment. The proof is in the pudding. You look at the enforcement record here and no one has ever tried to investigate the Carter Center and I doubt they ever would."
Contrary to what some conservative critics say, the Supreme Court is not in the habit of denying the government tools to fight terrorism, said American's Vladeck.
"My concern is that whatever the court says about the First Amendment here will say how much room the executive and legislative branches will have in the future," he said. "Today's terrorism is yesterday's communism is tomorrow's who knows what."
