Benjamin, Aaronson, Edinger & Patanzo, P.A.

Combating terrorism trumps Free Speech

Many of you probably remember exactly where you were when you first learned about the
terrorist attacks of September 11, 2001.  What most of us have forgotten is what those attacks did
to the American psyche at the time.  The United States that we knew prior to September 11, 2001
was not the United States we knew after.  Our sense of invincibility was gone, our belief in the
security of this country was forever shaken, and our knee-jerk reaction was just that, a knee-jerk

Attacking Iraq and deposing Saddam Hussein who had nothing to do with the 911 attacks,
somehow got justified.  Interning people without due process of law became patriotic and voicing
dissent to those actions became unpatriotic.  We were under attack and our moral compass be
damned, we needed to fight those bastards.  In that frame of mind, the United States Congress
passed the  (“Patriot Act”) which was quickly signed into law by George W. Bush.  Most of the
Congressmen and Senators that voted for the Bill, never read it in its entirety and those that had
problems with specific provisions were cowed into submission as being weak or terrorist
sympathizers.  Many knew that there were unconstitutional provisions within the “Patriot Act”
but because of political expediency voted in favor of it relying on the Courts in the future to
strike down those provisions.

One of the provisions of the “Patriot Act” makes it a crime to provide “material support”
which includes advise and training to terrorist organizations.  Material support includes expert
advice or training.  To be a terrorist group one only has to be designated as such by the United
States State Department.

In June, the United States Supreme Court ruled on this provision of the “Patriot Act”.
Ralph Fertig brought suit challenging the constitutionality of the Act based upon First
Amendment grounds.  Mr. Fertig  an advocate of Kurdish rights, argued that the words “advice”
and “training” should not be read broadly to cover those who advised others to steer away from
violence and terrorism.

In a six to three decision, the Supreme Court ruled that in fact giving advice to a terrorist
group to settle their disputes peacefully was in fact advice covered by the law and would make
someone guilty of violating the “Patriot Act”.  The Supreme Court held that the First
Amendment did not protect such speech and agreed with the United States Government that
“providing material support to a designated foreign terrorist organization – even seemingly
benign – bolsters terrorists of that organization”.

The ramifications of this case will go on for years.  It will silence those who try to bring
the outlawed into the lawed.  In essence, once an organization is declared to be a terrorist
organization by the State Department, American citizens can have no communication with it.  A
lawyer that was sought out by a terrorist organization to contact the State Department or other
authorities in order to explain why it should not be considered a terrorist organization or why it
was willing to change its ways, would be guilty of violating the “Patriot Act”.  A broker of peace
between Al Qaeda and the United States would also violate this law.

What is most disturbing about the Court’s decision is the lack of analysis done by the
Supreme Court.  There are different types of speech.  As we have written numerous times, nude
dancing is on the outer fringes of First Amendment protection.  We have written numerous times
that pure or core political speech is the most protected of First Amendment expression.  Under
the Fifth Amendment to the United States Constitution, and other Amendments, the right to
counsel and the right of that counsel to advise has always been sanctified.  The Court did sidestep
these analyses, and rather ruled that the need to combat terrorism trumped the concerns over
restricting freedom of speech.

Yet, under standard First Amendment analysis, it is the Government’s burden to show a
compelling governmental interest as to why that is the case.  The Court’s decision seems to rely
on the Government’s assertion that there is in interest in preventing anyone from dealing with
terrorist organizations even if the motive is none violence or to bring that terrorist organization
into the fold.  The Court seemed to take the Government’s position as not needing validation and
fact, but that the assertion alone was enough.

In other news currently sitting on Governor Nixon of Missouri’s desk is the Missouri law
that would restrict adult entertainment within the State.  The law would prohibit clubs from
staying open past 12 midnight, it would prohibit dancers from ever being totally nude, and would
restrict partial nudity to a stage where patrons would have to be six feet away.  The Governor has
until July 10, 2010 to sign the Bill and if he does not it becomes law.

The Governor is faced with a dilemma.  Putting First Amendment freedoms aside, he is
the Chief Executive of a State which recently announced  three hundred and one million dollars
of budget cuts.  People in Missouri are looking for jobs and the State is looking for a way to
balance the budget and provide services to the people.

Adult clubs in Missouri are estimated to supply income to three thousand people that
work within the clubs and untold thousands of people who work in ancillary businesses.  The
adult clubs  provided the State with 4.5 million dollars in State sales tax revenue just last year.
Governor Nixon will be balancing the loss of at least 4.5 million dollars in revenue, the
possibility of over three thousand people and their families needing State assistance, with a law
that is designed for the purpose of putting adult clubs out of business.

It is always politically expedient to rule or to decide against adult entertainment.  Adult
entertainment never gets good press and the media likes to play up the shady side of the
entertainment.  But, this may be a situation where common sense trumps the political expediency
and Governor Nixon may just decide to veto this Bill as it is the right thing to do and it is best for
the State of Missouri.

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