In Holder, Court Upholds Ban on Speech Supporting Terrorism

On June 21, 2010, the Supreme Court ruled 6 to 3 that the federal government may constitutionally block speech and other forms of advocacy supporting foreign groups that have been labeled terrorist, even if the support is directed toward the groups' humanitarian or peaceful activities.

However, the majority opinion in Holder v. Humanitarian Law Project, written by Chief Justice John Roberts, held that advocacy must be "coordinated with or under the direction of a designated foreign terrorist organization" in order for the government to proscribe it. In the dissent, Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, argued that the majority's limitation was meaningless, writing that "there is no way to organize ... without 'coordination.'" Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)

Holder was a First Amendment challenge to 18 U.S.C. § 2339B, commonly known as the "material support for terrorism" statute. Section 2339B prohibits "knowingly provid[ing] material support or resources to a foreign terrorist organization." The statute considers a group to be a "foreign terrorist group" if so defined by the Secretary of State. "Material support or resources" is defined 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 ... and transportation, except medicine or religious materials."

The Humanitarian Law Project, a nonprofit organization, and two private individuals challenged the constitutionality of section 2339B as applied to their desire to support the Partiya Karkeren Kurdistan (PKK) in Turkey and the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka in federal district court in the Central District of California in 1998. Both the PKK and the LTTE are designated terrorist organizations that have carried out violent attacks, but they also engage in political and humanitarian activities. The plaintiffs said they wanted to provide money, political advocacy, and legal training to the groups' peaceful wings, but feared prosecution under section 2339B if they did so.

The district court granted the plaintiffs' request for a preliminary injunction on the grounds that the terms "material support," "training," and "personnel" in the statute were vague, but held that the plaintiffs had not established a probability of success on their First Amendment claim.

At the Supreme Court, the plaintiffs argued that to prosecute them under section 2339B would unconstitutionally infringe on protected political speech. The government argued that "the only thing truly at issue ... is conduct, not speech."

The Supreme Court concluded that the statute regulates speech on the basis of content because the "[p]laintiffs want to speak to the PKK and LTTE, and whether they may do so [under the statute] depends on what they say." The Court therefore applied the strict scrutiny standard of review, and for the first time in the free speech context, the Court found that standard was met because § 2339B was "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."

Roberts wrote that whether the plaintiffs' speech was punishable under section 2339B depended on the nature of the speech. If plaintiffs provided specific knowledge to the PKK or LTTE (for example, on how to petition the United Nations), their speech is punishable as "coordination," and therefore as "material support." On the other hand, the Court said the plaintiffs' "speech is not barred if it imparts only general or unspecialized knowledge." The Court found that because the type of aid the plaintiffs wanted to give to the LTTE and the PKK included money and legal advice on how to petition the U.N., that behavior counted as "coordinating" with those groups, which the plaintiffs knew were designated as terrorist. Therefore, the Court held, the government could prosecute the plaintiffs without violating the First Amendment.

Deferring heavily to the executive and legislative branches, Roberts rejected the plaintiffs' argument that supporting an organization for its humanitarian and political purposes is separate from supporting it for its terrorist activities. Roberts wrote that if the plaintiffs gave money to the LTTE, for example, they could still end up "supporting" the LTTE's terrorist activities because Congress had concluded that "money is fungible," and there is no evidence that the LTTE would not divert funds from its humanitarian wing to its terrorist wing.

In his dissent, Breyer argued that "there is no natural stopping point" for the argument that aiding an organization's peaceful arm might also aid its violent arm. "It is inordinately difficult to distinguish when speech activity will and when it will not initiate the chain of causation the Court suggests—a chain that leads from peaceful advocacy to 'legitimacy' to increased support for the group to an increased supply of material goods that support its terrorist activities," he wrote, adding, "even were we to find some such line of distinction, its application would seem so inherently uncertain that it would often, perhaps always, 'chill' protected speech beyond its boundary."

Roberts retorted that "Congress has settled on ... a natural stopping place: The statute reaches only material support 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."

The majority emphasized the narrowness of its holding, observing that even though the activities in which the plaintiffs wanted to engage could be proscribed, that did not mean "any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny."

Some constitutional scholars criticized the Holder ruling. On June 21, Professor Steve Vladeck of American University Law School wrote in a forum discussion on The New York Times' Room For Debate blog that "in [the majority's] view, the material support statute doesn't impose guilt by association; the defendant had to do something to support the group. But almost anything can be that something." A lead attorney for the plaintiffs, Professor David Cole of the Georgetown University Law Center, wrote in the same forum that the court had, for the first time, made non-violent political activities a crime punishable by up to 15 years in prison.

In a post on the First Amendment Center website, legal correspondent Tony Mauro quoted Cole as saying "this is the first time that the Supreme Court has applied strict scrutiny and found a statute to satisfy that strict standard," adding, "The Court came to this conclusion without the kind of demanding scrutiny the doctrine requires."

- Geoff Pipoly
Silha Research Assistant



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This page contains a single entry by cla published on September 10, 2010 2:55 PM.

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