Congress’s crackdown on ‘terrorist supporting organizations’ threatens nonprofit news

Journalists covering issues of clear public concern often report on illegal conduct — not to reward or encourage it, but to inform the public. The First Amendment protects that core press function; still, officials with their own agenda have often tried to skew the news in a preferred direction by accusing the press of support for violence or lawbreaking they cover. A bill pending in the U.S. Senate that would strip tax-exempt status from nonprofits that the Treasury secretary labels “terrorist supporting organizations” — newsrooms included — poses just that risk of abuse.

The legislation, which sailed through the U.S. House of Representatives in April, would allow the secretary to suspend the tax-exempt status of any nonprofit that he or she designates as “having provided … material support or resources” to a foreign terrorist organization. As you probably intuited, intentionally providing material support to terrorists is already a crime — but Treasury’s new authority would have a broader sweep because it lacks an intent requirement. And while the bill would require the secretary to first provide notice of the looming penalty to any nonprofit affected, the secretary would have no obligation to explain what support the organization allegedly gave if “national security and law enforcement interests” favor secrecy.

The dangers for nonprofit newsrooms covering terrorism are stark. As the U.S. Supreme Court acknowledged in Holder v. Humanitarian Law Project, the terms of the existing material-support statute sweep in pure speech — but the justices expressed serious doubt that the statute “would pass constitutional muster” if applied to speech that isn’t intentionally coordinated with terrorist organizations, “even if the Government were to show that such speech benefits foreign terrorist organizations.” Otherwise, most news coverage of terrorism — however urgent and public-spirited — would be illegal if terrorists were to welcome the attention. Justice Brett Kavanaugh raised just that concern during last term’s arguments over the scope of aiding-and-abetting liability under the Anti-Terrorism Act, pointing out (in an example that the Reporters Committee and other civil society groups had raised) that many Americans first learned of Osama Bin Laden’s grave threat to the United States from a news interview he gave.  

But without heed for those First Amendment limits, public officials haven’t been shy about suggesting that reporting on terrorism in terms they don’t like may be illegal. In the early weeks of the Gaza War, a coalition of state attorneys general threatened The New York Times, Associated Press, CNN, and Reuters over their coverage of the conflict with insinuations that “writing and distributing publications” in support of Hamas would constitute material support. As The Times rightly answered, “the only connection The New York Times has to Hamas is that we report on the organization fearlessly and at times at great risk, bringing essential information to the public about the terrorist attacks in Israel and the ongoing conflict in Gaza.” But the bill pending in the Senate would be a recipe for more harassment of the press.

We hope that senators will take stock of those grave risks and that this bill goes no further.  Fierce, independent reporting on terrorism could hardly be more important to public discourse than it is today — and it sits at the core of what the First Amendment was designed to protect.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.