The most significant ruling handed down by the US Supreme Court today is mixed at best:
For the first time in nearly nine years of what the government has called a “war on terrorism,” the Supreme Court on Monday ruled decisively in the government’s favor — but still stopped short of providing an unqualified victory. The Court ruled, by a 6-3 vote, that it does not violate the Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group’s peaceful or humanitarian actions. But the Court added a significant qualifier: such activity may be banned only if it is coordinated with or controlled by the overseas terrorist group. That limitation, however, may be fairly difficult for lower courts to apply case by case; the Court provided little specific guidance.
What is involved here? The dissent (Breyer, Ginsburg, Sotomayor) noted:
The plaintiffs, all United States citizens or associations, now seek an injunction and declaration providing that, without violating the statute, they can (1) ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes'; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey'; (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief'; and (4) ‘engage in political advocacy on behalf of Tamils who live in Sri Lanka.'
Scary stuff, huh? Breyer, who read his dissent from the bench underlining how important he found the matter, continued:
In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in these activities. All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends. Even the subjects the plaintiffs wish to teach - using international law to resolve disputes peacefully or petitioning the United Nations, for instance - concern political speech.
More here. Meanwhile, Justice Stevens alone dissenting (Breyer not involved, his brother the district judge, whose ruling was overruled), a win for bioengineered food producers which will matter more for future regulatory action. Workers also didn't come off that well today in this 5-4 arbitration case. Finally, the American Constitution Society had some good speakers, including Al Franken and Dawn Johnsen. See here.
Sometimes, it is a matter of getting what you can, and avoiding big losses. A Kagan vote, as well as a potential removal of a Stevens to provide a counterpoint that can move majority opinions even when he doesn't join them, therefore has to be judged beyond a simple matter of 5/4 majorities.]