Damage Control? A Comment on Professor Neuman’s Reading of \u3ci\u3eReno v. AADC\u3c/i\u3e

This comment responds to an article by Professor Gerald Neuman on the Supreme Court\u27s recent decision in Reno v. American-Arab Anti-Discrimination Committee (AADC). The Court in AADC rejected a selective prosecution claim by immigrants targeted for deportation based on First Amendment-protected activities, finding that Congress had stripped the federal courts of jurisdiction over such claims, and that in any event the Constitution does not recognize a selective prosecution objection to a deportation proceeding. Professor Neuman argues that the decision should not be read as implying that aliens have less First Amendment protection than citizens, and that the decision can be squared with the First Amendment because the First Amendment simply does not extend to fundraising for foreign terrorist organizations, even when provided by citizens. Professor Neuman\u27s argument fails for two fundamental reasons. First, the Court in AADC did not focus on allegations of fundraising, but rather on allegations of membership per se. This is because the government\u27s own concessions in the case made clear that they selectively sought to deport the plaintiffs for a range of core associational activities, including but not limited to fundraising. Thus, neither the Supreme Court decision on its face nor the underlying facts support an argument that the case is about the peculiar constitutional status of fundraising. Second, and more fundamentally, Professor Neuman\u27s conception of the First and Fifth Amendment rights of United States citizens is too parsimonious--fundraising is a core form of association, and is worthy of no less constitutional protection. A law that forbade payment of dues to Amnesty International would be just as invalid as a law that forbade membership in Amnesty International, and for the same reasons. There is strong support in constitutional principle and precedent for the proposition that the government may not selectively criminalize material support to foreign terrorist organizations without proof that the individual supporter specifically intended to further some illegal activity of the group. In the end, Professor Neuman advocates abandoning the prohibition on guilt by association where the group associated with has been designated a foreign terrorist organization. But that principle was itself developed in the context of association with a foreign organization that had been designated as terrorist, the Communist Party. In short, then, Professor Neuman misreads the AADC decision as being about fundraising rather than association, and more fundamentally, misreads the First and Fifth Amendments by contending that selective punishment of fundraising for particular groups does not violate the right of association