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When Free Speech Becomes Material Support: § 2339 and the Private Sector’s Role in Combatting

It is well documented that ISIS and other terrorist organizations have made great use of social media platforms to advance their propaganda and to recruit. In response, the United States government has increased its pressure on the private sector to take a more active stance in flagging and removing terrorism-related content. [1] However, the response from the major social media forums has been hesitant. There are two issues that will predominate in the debate of how to combat the social media recruitment techniques of terrorist organizations. First, to what extent can and will social media companies go to root out terrorist-recruitment content and user accounts; and second, will the United States be able to effectively identify and prosecute users who post content deemed to be supporting or advocating terrorist organizations.

At the heart of the tensions concerning removal of social media content is the debate over free speech and consumer privacy against combatting the proliferation of terrorist propaganda. Social media sites like Twitter promote themselves as a global platform of free thought and exchange, and it is perhaps because of this outspoken stance that Twitter has been the primary forum for the spread of terrorist propaganda. [2] However, Twitter has in recent months taken precautions to combat this propaganda campaign, deactivating nearly 125,000 user accounts it had deemed affiliated with supporting terrorism in a six-month span. [3] Twitter has also expanded its review board and now claims to suspend accounts on an hourly basis in order to effectively respond to complaints or flagged materials in a shorter amount of time. [4] Major social media sites, because they are comprised of user-generated content, respond to complaints or flags and then review the posts before taking them down. Twitter released an official comment on February 5, stating, “There is no ‘magic algorithm’ to find tweets and no set standard for determining if it is promoting terrorism.” [5]

Congressional response has been mixed. Rep. Adam Schiff of California and member of the House Permanent Select Committee on Intelligence called Twitter’s announcement “a very positive development.” [6] In stark contrast is Rep. Ted Poe, who criticized tech companies such as Facebook, Instagram, and Twitter for being hesitant to act. He stated “To put it bluntly, private American companies should not be operating as the propaganda megaphone of foreign terrorist organizations…” [7]

The most immediate concern is whether social media companies’ decision to engage in this review process presents First Amendment issues. The slow response to the rise of extremist groups using social media is largely a result of hesitancy to clamp down on free speech and the difficulty in creating standards of review to determine which posts and accounts to take down. [8] Even if the social media companies decide to strengthen their stance against potential terrorist recruitment accounts or posts, the potential exists for the to open new accounts and continue to post terrorism-related content until that new account is flagged and removed.

An alternative method that the United States has already begun to explore is to prosecute users identified as American citizens who promote terrorism-related posts and tweets under 18 U.S.C. § 2339. The statute states that it is unlawful for “Whoever provides material support or resources… knowing or intending that they are to be used in preparation… [for aiding terrorist organizations].” [9] The relevant definition of material support provided in § 2339b refers to “any means any property, tangible or intangible, or service… expert advice or assistance.” [10] Expert advice and assistance is defined as “advice or assistance derived from scientific, technical or other specialized knowledge.” [11] The statute has most often been used to prosecute United States citizens providing financial, military, and strategic support to identified terrorist organizations, but Assistant Attorney General for National Security John Carlin has recently stated the potential exists for using the law to prosecute online media content deemed to provide “technical expertise” to a designated terrorist organization. [12]

However, recent case law developments could frustrate attempts to prosecute those who post content sympathetic to a terrorist organization. In the 2010 Supreme Court case Holder v. Humanitarian Law Project, United States citizens and domestic organizations had sought to provide support for lawful activities of two organizations that had been designated as foreign terrorist organizations. [13]. The organizations sought injunction against the enforcement of the § 2339 on the grounds that it violated their First Amendment right of freedoms of speech and association, and also that it failed for vagueness. [14] The Court upheld the statute based only on the fact that the plaintiffs were clearly engaging in training through its work with the two groups that would constitute expert advice and assistance. [15] The Court noted that the statute only reaches material support when the activity is coordinated with or under the direction of a designated foreign terrorist organization; independent advocacy that might be viewed as promoting the group’s legitimacy is not covered. [16] To succeed in prosecuting United States citizens based on the Court’s holding in Holder, the content must be more specific than a generalized tweet of support or sympathy. Thus, the fact that a message could be used as a general recruitment tool is unlikely to meet the legal standard fashioned in Holder and thus will be protected as political speech under the First Amendment.

Ultimately, the private sector’s current hesitance and the judicial constraints on § 2339 limit the effectiveness of the current tools to fight against the ISIS and terror-affiliates social media propaganda campaign. Whether additional legislation will be adopted to effectuate more progress in the anti-ISIS campaign on the social media front is uncertain at this time. However, given the current landscape, a more coordinated effort with the private sector and exploring legislative options will likely be the starting point for a strategy moving forward.

[1] Damian Paletta, U.S. Working on Plan to Scrutinize Social Media in Visa Review, W.S.J., 14 Dec. 2015. Available at

[2] Scott Higham & Ellen Nakashima, Why the Islamic State Leaves Tech Companies Torn between Free Speech and Security, Wash. Post, 16 July 2015. Available at

[3] Yoree Koh, Twitter Suspends 125,000 ISIS-Related Accounts in Six Months, W.S.J., 5 Feb. 2016. Available at

[4] Jessica Guynn & Elizabeth Weise, Twitter Suspends 125,000 ISIL-Related Accounts, U.S.A. Today, 5 Feb. 2016. Available at

[5] Id.

[6] See Footnote 3.

[7] Candice Lanier, Free Speech or Material Support to Terrorists? Twitter Begins Cracking Down On Hateful Tweets, Medium Corp. 20 Apr. 2015. Available at

[8] See Footnote 3.

[9] 18 U.S.C. §2339(a) (West 1996).

[10] § 2339(b).

[11] Id.

[12] See Footnote 7.

[13] Holder v. Humanitarian Law Project, 561 U.S. 1, 9-10 (2010).

[14] Holder, 561 U.S. at 10-11.

[15] Holder, 561 U.S. at 22-23.

[16] Holder, 561 U.S. at 32.


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