More than a year ago, I observed that “many Americans subscribe to the belief that certain actions are unimpeachable as long as they have an expressive element to them.” The phenomenon appears to grow by the day. The latest installment in this pattern—what I called “free speech supramaximalism”—comes in the form of a New York Times op-ed critiquing, of all things, our laws prohibiting material support for terrorism. The Times’s editors, if not author Rozina Ali, characterized the legal consequences of an attack on an Immigration and Customs Enforcement facility in the headline: “These Protesters Were Charged With Terrorism. Who’s Next?”

　　The answer to that question is nobody—unless said “protestors,” like the Prairieland ICE facility attackers, set off explosives, deface property, and shoot police. The dishonesty of euphemizing such illegal activity as “protest” speaks to our cultural impulse to leap to defend all expression. But the problems with Ali’s piece run much deeper than the headline, which merely captures the sum of all its errors. The op-ed betrays a profoundly myopic view of free speech, misunderstands our material-support laws, and shockingly relies on examples suggesting that, if anything, we need to scrutinize radical groups even more closely than we already do.

　　The Meaning of Terrorism

　　Ali makes several interrelated points. She argues that the Prairieland demonstrators received excessive sentences because they were charged—ostensibly over-charged—with material support for terrorism. Ali contends that the term “support” is “ambiguous” and leads to “prosecutions” based on “increasingly vague definitions.” Malleable and “focus[ed] on prevention,” material-support laws have facilitated a “witch hunt” against President Donald Trump’s enemies, such as Antifa and “liberal nonprofits.” Material-support charges against the Prairieland defendants, says one quoted attorney, amount to “judicial terrorism, designed to keep people from coming to protest.”

　　At least one lawyer, then, knows what “terrorism” means. It’s engaging in some condemnable behavior to accomplish a political or ideological goal. While it’s not clear how charging people who committed crimes keeps anyone from coming to protest—since it wasn’t the constitutionally protected acts of protest that led to the charges, but the undisputed criminal activity—everyone seems to understand that wrongdoing can be especially destructive if calculated to obstruct or circumvent democratic norms.

　　American law reflects this understanding. It defines terrorism as a “dangerous” and illegal action that “appears to be intended to intimidate or coerce a civilian population” or “influence the policy of a government by intimidation or coercion.” Such a definition is no more ambiguous than any other in our law. A jury is perfectly capable of hearing evidence that an individual intended—or a group conspired—to achieve certain policy outcomes through violence. An attack against an ICE facility, at a time when opposition to ICE (even interference with its law-enforcement activity) was at high tide, carries a few of the hallmarks of terrorism. (Graffiti at the facility reading “F—you pigs” did not help the defendants’ case.) The government proved beyond a reasonable doubt that the Prairieland attackers were using unlawful means to try to coerce ICE to change its ways.

　　If Americans come to believe that they can get away with disorderly or violent demonstrations, they will have no use for peaceful, lawful protest.

　　Yet why should such activity carry additional penalties? What that attorney deems “judicial terrorism” is really deterrence in action; not discouraging people from protesting, but from engaging in terrorism in place of protest.

　　Contrary to the attorney’s implication, this is a particularly worthwhile form of deterrence, which defenders of the First Amendment and lovers of protest should celebrate. In addition to the obvious destruction and violence wrought by these “protestors,” there is an additional danger posed to our democratic norms when people try to get their way through intimidation rather than persuasion. Genuine protest, like other forms of speech we have learned to treat as not just acceptable but sacrosanct, is compatible with a functioning free society. Violence and disruptions that interfere with other citizens’ legitimate interests are not.

　　Ali and the attorneys she quotes do not see genuine demonstrations and violent disruptions as being at odds, but as one continuum of “protest.” Punishing violence too severely therefore chills peaceful expression, as if gathering on a sidewalk leads inexorably to spilling over into the street and blocking traffic. Fundamentally, on this view, these are all manifestations of the same thing—expression, speaking out, exercising the right to protest. But this is flagrantly wrong, and makes the dangers of free speech supramaximalism clear: Treating violence as merely an extension of genuine protest renders actual free speech powerless and irrelevant.

　　If Americans come to believe that they can get away with disorderly or violent demonstrations, they will have no use for peaceful, lawful protest. Everyone will have to resort to disruption and violence if they want to compete with opponents willing to use such tactics. Severe penalties for trying to intimidate or coerce us, rather than persuade us, deter the race to the bottom and protect genuine freedoms of speech and protest. Policing the line between protest and lawlessness is in free-speech-maximalists’ interests.

　　The Government’s Compelling Interest

　　Ali attempts to portray our laws prohibiting material support for terrorism as directly contradictory to sacred First Amendment rights. After the September 11, 2001, terror attacks, she summarizes, “Law enforcement swept through Muslim communities, goading young men—including those with no criminal record—into making statements in support of terrorist plots, then slapping them with material support charges.” Prosecutors also pursued cases involving “small donations … translating a magazine … even offering nonviolent alternatives to a militant group.” Non-sequitur about prior criminal records aside, Ali is trying to show that the Prairieland prosecutions are of a piece with this trend, because all of them are really about speech, whether statements, translation, instruction, or anti-ICE demonstrations gone sideways.

　　Material-support laws and speech are certainly bound to collide, but that does not mean such laws are hopelessly vague or license prosecutorial indiscretions. Providing a full analysis requires understanding more about Congress’s express findings regarding terror groups, and the Supreme Court’s subsequent interpretation and application of the laws constructed upon those findings.

　　Alluded to but not named in Ali’s op-ed is a 2010 case, Holder v. Humanitarian Law Project, that became the definitive Supreme Court decision assessing whether the law is unconstitutionally vague or burdensome to speech rights. Chief Justice John Roberts’s opinion for a 6-3 Court explained that even providing legal advice to a designated foreign terrorist organization (not merely a “militant” group, as Ali puts it) could be prosecuted under our material-support laws consistent with the First Amendment. Even applying the “fatal in fact” test of strict scrutiny, the Court found that the government’s overwhelming interest in starving international terror outfits of support could justify prosecuting forms of speech that would be protected in any other context.

　　Holder cited Congress’s logical explanation for such dramatic restrictions: FTOs “are so tainted by their criminal conduct,” Congress wrote in a ratified amendment to the Antiterrorism Act, “that any contribution to such an organization facilitates that conduct.” Terror enterprises are so comprehensive that our national security imperative to defeat them compels a complete siege against them—giving their cause no quarter and depriving them of resources. As then-Solicitor General Elena Kagan explained while arguing Holder before the Court, this logically compels proscribing any relationship with FTOs, even innocuous ones: “Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs.”

　　Ali’s characterization of material-support laws either misunderstands or simply shortchanges the logic behind this approach. “It did not matter if the defendant” in a material-support case “directly helped carry out an assault or belonged to a terrorist organization: They could be prosecuted as if they were.” That’s correct, because terrorism thrives on more than membership and violence. It requires money, other goods and services, and occasionally even public relations. The controversial edge cases are no longer about the ambiguity of the term “support,” but about drawing the line between coordination and independent advocacy.

　　Radical groups are rife with individuals disposed to using violence to get their way.

　　A national-security interest such as starving terrorist groups of all support can defeat even free-speech interests, and that is what happened in Holder. That is not a reflection of creeping fascism, free-speech hypocrisy, or anything untoward at all. It is simply an application of long-running First Amendment doctrine, which reflects the commonsense understanding that we have shared interests beyond maximizing expression. Congress amply justified its approach to the national-security imperative of defeating transnational terrorist groups, and designed a law that recognizes how terrorist groups operate and tailors its prohibitions accordingly—leaving genuine independent advocacy for the pro-terrorist position protected. If this arrangement seems legally dubious, that is only because we are unused to the idea that the freedom of speech is circumscribed and does not cover all expression in every way.

　　Not a Witch Hunt

　　Is there an ongoing witch hunt under the guise of counter-terrorism? Ali wants her readers to believe there is, citing comments from senior White House officials and alleging they seek to portray left-wing opponents as “terrorists.” Even as she admits that such a portrayal has no legal effect, Ali invites civil libertarians to join the fight against a heavy-handed state using flimsy justifications to crush dissent.

　　The argument does not hold up in light of facts on the ground. While she remains fixated on the use of the word “terror,” Ali doesn’t account for the possibility that there is a movement afoot to use lawlessness and anti-Western rhetoric to do what terrorists do—intimidate and coerce rather than reason and persuade. There are networks of organizations, funded by benefactors, designed to do exactly this. As my Manhattan Institute colleague Stu Smith and I—among many other researchers and analysts of domestic extremist movements and foreign malign influence—have shown, this is incontrovertibly true.

　　Much of the action occurs in the nonprofit sector, as Ali notes. “This law has not only been used against individuals,” she writes. “Prosecutors have also turned it against nonprofits, ultimately shutting down a major Muslim charity and complicating the work of others.” Nonprofits are usually seen as beneficial civil society organizations, and of course the vast majority of them are.

　　But not all. The “major Muslim charity” to which Ali links in her piece is the Holy Land Foundation (HLF), subject of the largest terror financing prosecution in American history. In November 2008, a federal jury found that HLF was a front for Hamas that had funneled more than $12 million to Hamas-controlled entities while deliberately disguising the transfers as humanitarian aid. Five senior HLF officials went to prison; families of American victims of Hamas terror are still trying to collect the civil judgments they are due from HLF and its coconspirators.

　　Ali thus proves a bit too much. When the government does go after nonprofits, it’s not because it’s pursuing a witch hunt—it’s because that is where egregious terror-financing schemes live. With good reason, too: the First Amendment provides nonprofits significant privacy, and our tax code provides incentives for donations. In passing, Ali suggests that members of ongoing domestic terror networks are still making their home in the civil society sector. “The Prairieland defendants were hardly members of a cohesive terrorist cell,” she writes, not that cohesiveness is legally relevant. “Some were part of a Signal chat that was used to plan the demonstration. Several of them were attached to various organizations, like the Democratic Socialists of America and an anticapitalist reading group.”

　　All that suggests is that law enforcement ought to take a closer look at the centers of these conspiracies: Who put them in the Signal chat? What was the nature of their affiliation with the DSA? If several individuals share some affiliations, and then commit illegal actions to advance their shared cause, it’s logical to investigate whether those groups were responsible in some way for the lawbreaking.

　　If there’s any takeaway from this whole episode—and the way sympathetic observers are trying to reframe it—it’s that radical groups are rife with individuals disposed to using violence to get their way. They will call themselves protestors, free-speech warriors, and victims of a paranoid campaign to root out political violence. But they are feeling the heat for good reason: they represent a significant threat to the integrity of the American political system—indeed, to the future of the republic.