Free Speech in the War on Terror: Does the Military Commissions Act Violate the First Amendment?

Abstract:     
On October 17, 2006, President George W. Bush signed into law the United States Military Commissions Act of 2006, responding to the Supreme Court's holding in Hamdan v. Rumsfeld. Courts will soon consider whether the MCA violates parts of the Constitution, including the First Amendment. The purpose of this article is to examine whether the MCA's material support provisions, allowing the government to try persons suspected of having provided material support to terrorists in military commissions, violate First Amendment free speech rights. This article argues that the government might avoid First Amendment challenges to the MCA by making clear distinctions between support for lawful activities not related to terrorist acts and support for unlawful, terrorist activities in the material support definitions. By narrowing the definitions of material support, the government would allow for the prosecution of dangerous forms of support for terrorists while not violating citizens' and residents' First Amendment rights of association and speech in pursuit of humanitarian activities.

Number of Pages in PDF File: 5

Keywords: Military Commisions Act, First Amendment, Free Speech, Bill of Rights, War on Terror, MCA, Material Support, Terrorism

JEL Classification: K, K3

Accepted Paper Series