Understanding the difference between free speech and material support for terrorism

Times of conflict often spark demands for increased safety measures. But a laudable desire like ensuring national security can sometimes go too far, prompting authorities to suppress one of the most fundamental American rights — freedom of speech. 

Our nation’s college campuses are hardly exempt from these pressures, as the 2023-24 academic year made abundantly clear, with students and faculty across the country expressing diverging political positions that caused controversy about the Israeli-Palestinian conflict in Gaza. Colleges and Universities were often too quick to punish students and faculty for protected expression administrators deemed — incorrectly — to be “material support for terrorism,” either because they misunderstand the law or due to pressure from politicians, donors, and the public. 

It doesn’t have to be this way. Here, we’ll discuss the nature of our Consitution’s protections for free speech, the legal meaning of “material support for terrorism,” and how, with a solid understanding of the relevant law, you can easily differentiate the two.

What kind of controversial expression does the First Amendment protect?

While the First Amendment protects a vast range of speech and expressive conduct, courts have long recognized a few narrow and carefully defined categorical exceptions. These include, for example, true threats (expressing serious intent to commit an act of unlawful violence to a particular person or group) and incitement (speech directed to producing imminent lawless action that is likely to produce it). Nor is discriminatory harassment protected under the First Amendment, which in the context of higher education means conduct, including speech, that is 1) unwelcome, 2) discriminatory on the basis of a protected class, and 3) so severe, pervasive, and objectionably offensive that a victim is effectively denied educational opportunities or benefits.

In contrast, the First Amendment protects an exceptionally wide range of expression, up to and including philosophical support for violence, general endorsement of it, and even asserting the “moral propriety or even moral necessity” for violence in a given circumstance. (Were this untrue, for example, Americans could be punished for encouraging Ukrainians to militarily resist Russia's invasion.) Likewise, speech that some may find hateful, offensive, or insulting, without more, is also protected. As FIRE has written, much speech once considered “hateful” formed the backbone of now widely accepted political movements:

The best case for hate speech is the history of political movements in the United States. The Abolitionist Movement in the 1800s, the Women’s Rights Movement in the 1850s, the Civil Rights Movement in the 1950s, and the advent of gay rights movements just a few decades ago would have undoubtedly run afoul of hate speech laws had they been in effect. Nor is it difficult to imagine members of Black Lives Matter, Alt-Right, and Antifa facing prosecution under such laws if they existed today. These movements came about because of a robust First Amendment, not in spite of it. Yesterday’s hate speech is today’s civil rights legislation.

The First Amendment also protects the right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. This extends to university students forming student groups on campus, That includes those tied to a national organization that has “published aims” of “disruption and violence,” as the Supreme Court decided more than a half-century ago in Healy v. James during another era of intense national unrest, the Vietnam War.

What is material support for terrorism?

How do the First Amendment’s strong speech protections square with federal prohibitions against “material support for terrorism”? 

Current federal law, such as the Antiterrorism and Effective Death Penalty Act of 1996, criminalizes the provision of “material support or resources” to a list of specific foreign terrorist organizations like Hamas, ISIS, and Al-Qaeda. 

The Act defines “material support or resources” as: 

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials[.]

When the Supreme Court examined this definition in 2010’s Holder v. Humanitarian Law Project, it clarified that simply advocating for violence, expressing support for a terrorist organization or its goals, or even actual membership in a foreign terrorist organization, without more, does not qualify as providing material support. As the Court explained: 

Congress has not . . . sought to suppress ideas or opinions in the form of “pure political speech.” Rather, Congress has prohibited “material support,” which most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.

College administrators misapply ‘material support for terrorism’ to restrict speech

Despite the Supreme Court’s explanation that material support does not include “pure political speech,” some have claimed that individuals and student organizations have provided material support to terrorist organizations through expression that, in actuality, does not exceed what the First Amendment protects. 

In October 2023, for example, Gov. Ron DeSantis called on Florida’s public colleges and universities to derecognize campus chapters of Students for Justice in Palestine. DeSantis alleged National SJP supported terrorism, thus making communications between the campus chapters and the national organization material support for Hamas, the designated foreign terrorist group that conducted the October 7, 2023, attack on Israel. 

University administrators must understand the legal distinctions between protected speech and “material support for terrorism” to ensure they don’t punish constitutionally protected speech.

What were these communications? National SJP distributed a “Guide to Protests” to the campus SJP chapters, that called for “a national day of resistance from the student movement for Palestine liberation on college campuses” and said students are “PART of this movement.” (Emphasis in original.)

The guide also provided an RSVP link for a meeting on “how to organize a protest,” that included “roles, security, media training, and more,” as well as additional ways to engage in the movement such as teach-ins and written statements of solidarity. Additionally, it included information about the organization’s messaging and framing, hashtags for social media use, and graphic templates. 

The UF System chancellor argued the National SJP guide was an example of material support for terrorism, such that Florida’s public universities must shut down their local SJP chapters. Yet there was nothing in the guide indicating its issuance at the direction, coordination, or control of Hamas, or any other listed terrorist organization. And the guide’s statement that students were “PART of this movement” is best construed as rhetorical hyperbole fully protected by the First Amendment. 

In a similar vein, in December 2023, the Ohio State University suspended the student group Central Ohio Revolutionary Socialists after social media accounts accused it of openly supporting terrorism by calling for the genocide of Jews, endorsing violence as a means of resistance, and using both a logo and imagery from the Popular Front for the Liberation of Palestine. FIRE wrote to Ohio State explaining that suspending the group was unconstitutional as “there is no evidence CORS or its members have done anything other than express political beliefs,” and its activities did not “meet the federal standard for providing material support to terrorist organizations.” Ohio State lifted the suspension on Jan. 31, 2024.

But the 2023-24 academic year wasn’t the only time institutions of higher education misapplied the “material support for terrorism” ban. 

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In 2020, two San Francisco State University faculty members planned to host a Zoom discussion and Q&A featuring Lelila Khaled, a Palestinian activist who was the first woman to hijack an airplane. Khaled’s hijacking came in support of the Popular Front for the Liberation of Palestine, which is on the list of designated foreign terrorist organizations, leading many people to doubt the speaking event’s lawfulness. Zoom even went so far as to refuse to allow the discussion on its platform. And the nonprofit Lawfare Project called on the Department of Justice to take action against SFSU’s faculty hosts, claiming the discussion provided material support for terrorism by giving Khaled a platform to disseminate terrorist propaganda.

But hosting such a discussion simply would not constitute “material support” for terrorism. The First Amendment allows students and faculty to invite controversial speakers, ensures their right to speak, and includes the right to hear and receive information. There is no exception to these rights for speakers who have a criminal background or are members of a blacklisted organization.

Material support for terrorism requires more than political speech

University administrators must understand the legal distinctions between protected speech and “material support for terrorism” to ensure they don’t punish constitutionally protected speech. Material support for terrorism requires more than promoting ideas others may find hateful or dangerous — it requires an individual or group to go beyond mere advocacy, protest, affiliation, or campaigning for a political cause. This is likely to be very rare on American college campuses as, in the Supreme Court’s words, material support for terrorism “most often does not take the form of speech at all.”