Panel One: Analyzing the Decision — Discussion




  1. Andrew M

    March 25, 2011 @ 7:30 pm


    Would writing an amicus brief count as support? Speaker claims under majority — yes. But seems to me that would run afoul of coordination requirement in case.

  2. Andrew M

    March 25, 2011 @ 7:34 pm


    Seems clear that you could run your aid past government to avoid charges. But this seems like prior restraint.

  3. Harvard Negotiation Law Review

    March 25, 2011 @ 7:39 pm


    Holder v. Humanitarian Law Project, 130 S.Ct. 2705 U.S.,2010., decided June 21, 2010

    Background: The Humanitarian Law Project (“HLP”) wants to work with Secretary of State designated “foreign terrorist organizations” including the Kurdistan Workers Party (“PKK”) and the Liberation Tigers of Tamil Eelam (“LTTE”). HLP wants to train PKK and LTTE members on how to peacefully resolve disputes and work to negotiate peace agreements. However, the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”) criminalizes knowingly providing material support or resources to a foreign terrorist organization” (as designated by the Secretary of State) (18 USC 2339B(a)(1)). The 2001 Patriot Act amended “providing material support or resources” to encompass “expert advice or assistance”. Following the original AEDPA and the amended act, HLP sought injunctions, and found support from the district court and the Court of Appeals. In 2004, the Intelligence Reform and Terrorism Prevent Act (“IRTPA”) added a scienter requirement (previously required by the Court of Appeals following a HLP challenge) and defined the terms “material support or resources” “training” and “personnel”. On this most recent challenge by the HLP, the district court found the terms “training” and “service” unconstitutionally vague, and the Court of Appeals affirmed.

    Issue: Whether AEDPA, 18 USC 2339B(a)(1) which prohibits providing material support or resources to designated foreign terrorist organizations violates the First and Fifth Amendments due to vagueness and by restricting political speech.

    Holding: Majority, Roberts:
    (1) “providing material support or resources” was not impermissibly vague as applied to HLP’s proposed activities, most of which, the Court finds, fell within the scope of the statutory terms “training” and “expert advice or assistance”,
    (2) 2339B did not violate the First Amendment as applied, and
    (3) 2339B did not violate HLP’s freedom of association, as it did not prohibit independent advocacy

    Dissent, Breyer, joined by Ginsburg and Sotomayor

    First Amendment
    • Speech versus conduct: 18 U.S.C.S. § 2339B does not prohibit independent advocacy or expression of any kind. Section 2339B also does not prevent persons from becoming members of organizations or impose any sanction on them for doing so. Congress has not, therefore, 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.
    • Court finds that the restriction is content-based: “18 U.S.C.S. § 2339B regulates speech on the basis of its content. Whether persons may speak to foreign terrorist organizations § 2339B depends on what they say.”
    • Court applies something between the O’Brien test and strict scrutiny: “as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message. Thus, the Court “must [apply] a more demanding standard” than the one described in O’Brien.”
    • Issue as applied: “whether the Government may prohibit what plaintiffs want to do—provide material support to the PKK and LTTE in the form of speech.”
    o Government’s interest: Everyone agrees that the Government’s interest incombating terrorism is an urgent objective of the highest order
    o Government uniquely positioned to make the judgment: Observing that “one man’s vulgarity is another’s lyric,” we invalidated Cohen’s conviction in part because we concluded that “governmental officials cannot make principled distinctions in this area.” In this litigation, by contrast, Congress and the Executive are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not.
    o Somewhat limited, only applied to foreign terrorist organizations: There is, and always has been, a limited number of those organizations designated by the Executive Branch, see, e.g., 74 Fed. Reg. 29742 (2009); 62 Fed. Reg. 52650 (1997), and any groups so designated may seek judicial review of the designation
    o The Court finds link between the speech in question and the government’s ends (See discussion of The Government’s Interest in combating Terrorism)
     The Court distinguishes coordinated versus independent activity: “Service” is interpreted along the same lines. Thus, any independent advocacy in which parties wish to engage is not prohibited by § 2339B. On the other hand, a person of ordinary intelligence would understand the term “service” to cover advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.
     Limitations of judgment: “In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations. We also do not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations.”

    Freedom of association
    • “18 U.S.C.S. § 2339B does not penalize mere association with a foreign terrorist organization. The statute does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group. What § 2339B prohibits is the act of giving material support”

    • The court finds that the statute’s language prohibiting knowingly providing material support to foreign terrorist organizations is not vague, in violation of due process, in defining “material support” to include “training,” “service,” “personnel” and “expert advice or assistance”. The Court finds that statutory definitions increased clarity of these terms, and knowledge requirement further reduced potential for vagueness.
    • The Court clarifies the scope of the Act in its discussion of these definitions, stating that: “If speech to those groups imparts a “specific skill” or communicates advice derived from “specialized knowledge”–for example, training on the use of international law or advice on petitioning the United Nations–then it is barred. On the other hand, speech is not barred if it imparts only general or unspecialized knowledge”

    • 18 U.S.C.S. § 2339B(a)(1) prohibits “knowingly” providing material support to a foreign terrorist organization. It specifically describes the type of knowledge that is required: To violate § 2339B(a)(1), a person must have knowledge that the organization is a designated terrorist organization, that the organization has engaged or engages in terrorist activity, or that the organization has engaged or engages in terrorism. § 2339B(a)(1). Congress has plainly spoken to the necessary mental state for a violation of § 2339B, and it has chosen knowledge about the organization’s connection to terrorism, not specific intent to further the organization’s terrorist activities

    The government’s interest in combating terrorism
    • The amicus brief of the Anti-defamation League argues that humanitarian services aids foreign terrorist organizations as they are able to gain supporters by portraying themselves as beneficial organizations and because such aid frees up other resources within the organization used to support terrorist activities.
    • “It is vital in the context of national security not to substitute a court’s evaluation of evidence for a reasonable evaluation by the Legislative Branch”
    • “The material-support statute, 18 U.S.C.S. § 2339B, is, on its face, a preventive measure–it criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to occur. The government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before a court grants weight to its empirical conclusions. Because of the changeable and explosive nature of contemporary international relations, Congress must of necessity paint with a brush broader than that it customarily wields in domestic areas”
    • “In the area of terrorism concerns perhaps more than any other, the Legislature’s superior capacity for weighing competing interests means that a court must be particularly careful not to substitute its judgment of what is desirable for that of Congress”
    • “The PKK and the LTTE are deadly groups. It is not difficult to conclude, as Congress did, that the taint of their violent activities is so great that working in coordination with them or at their command legitimizes and furthers their terrorist means.

    Hinders humanitarian assistance
    • The Carter Center’s amicus argues that individuals could be criminally prosecuted for teaching nonviolence.
    • The vagueness of the act discourages groups from engaging in otherwise beneficial aid work.
    • “As to the particular speech plaintiffs propose to undertake, it is wholly foreseeable that directly training the PKK on how to use international law to resolve disputes would provide that group with information and techniques that it could use as part of a broader strategy to promote terrorism, and to threaten, manipulate, and disrupt. Teaching the PKK to petition international bodies for relief also could help the PKK obtain funding it would redirect to its violent activities. Plaintiffs’ proposals to engage in political advocacy on behalf of Kurds and Tamils, in turn, are phrased so generally that they cannot prevail in this preenforcement challenge.”
    • The definition of material support, for example, excludes medicine and religious materials. See §2339A(b)(1).

    Dissent, Breyer, joined by Ginsburg and Sotomayor
    • The dissent argues that the Act is not unconstitionally vague, but that the Government has not made the showing necessary to justify the act under the First Amendment.
    • The Court finds that: “All the activities involve the communication and advocacy of political ideas and lawful means of achieving political end…We cannot avoid the constitutional significance of these facts on the basis that some of this speech takes place outside the United States and is directed at foreign governments, for the activities also involve advocacy in this country directed to our government and its policies”, and that this kind of speech, political speech, is at the core of First Amendment protection.
    • The dissent then argues that the Court stretches the link between speech and government’s ends too far given the nature of the speech and protection it is due.
    • The dissent discounts the majority’s deference to the government’s interest in combating terrorism: “even the “serious and deadly problem” of international terrorism can require automatic forfeiture of First Amendment rights…After all, this Court has recognized that not “‘[e]ven the war power . . . remove[s] constitutional limitations safeguarding essential liberties.’”
    • The dissent indicates that a statute with a specific intent requirement may be constitutional: “I believe that a construction that would avoid the constitutional problem is “fairly possible.” In particular, I would read the statute as criminalizing First-Amendment protected pure speech and association only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions coordinated with or under the direction of a designated foreign terrorist organization”

  4. Bob

    March 25, 2011 @ 7:45 pm


    I wonder if Amanda can say a bit more about why the Court made the leap beyond what the government wanted — intermediate scrutiny — to strict scrutiny?

  5. Bob

    March 25, 2011 @ 7:53 pm


    Amanda talks of Holder as undoing a century of constitutional jurisprudence. She talks about the ways in which it uses sweeping and vague language. I’m curious to hear her thinking about why the Court did what it did. How much had to do with the era in which it made its decision (i.e. post 9/11, war in Afghanistan, Iraq, etc.)? How much the ideological views of the justices? How much because this seemed to be a situation where a Democratic administration was arguing on behalf of the arguable “right wing” side of the case? Other factors? It seems as if this must have come as a surprise to her and David Cole and so I wonder what she thinks might have been going on for the court.

  6. Lara

    March 25, 2011 @ 7:55 pm


    Can we explore what the court meant by “legitimacy” more? It seems that the government’s action of putting an organization on a terrorist list is a method of “legitimizing” the group by the mere fact that it recognizes these people as a group of international importance. How does engaging in conflict resolution speech with these groups create legitimacy in a way that is somehow different and more dangerous?

  7. Andrew M

    March 25, 2011 @ 7:56 pm


    Waiting for Amanda to mention that this uncertainty will chill domestic speech. Even if you agree with end result of HLP, you have to deplore the fact that the Court left large gaps in our understanding of the law as it relates to expression

  8. Toby

    March 25, 2011 @ 7:58 pm


    If this case is “just about speech,” then I’m curious to hear more about its implications for non-speech activities like election monitoring, hosting a mediation, etc. (unless the argument is that these are forms of speech as well).

  9. Andrew

    March 25, 2011 @ 7:59 pm


    Has there been any legislative movement following HLP to modify the material support statute to allow humanitarian exceptions or applications by individual groups to work with designated groups? Did Congress intend the material support provision to be so robust?

  10. Ellen

    March 25, 2011 @ 8:13 pm


    In response to Andrew’s comments, the case seems to suggest that restricting humanitarian efforts may be a slightly-intended side effect of the prohibition. The case links humanitarian aid with terrorism, arguing that by helping these designated terrorist organization in a purely humanitarian aspect frees up resources within the organization to dedicate towards terrorist activities. It is questionable whether aid in one area is so fungible.

  11. Andrew

    March 25, 2011 @ 8:14 pm


    What happened to the attorneys who represented the group seeking review of the terrorist list designation?

  12. Susan

    March 25, 2011 @ 8:35 pm


    Should NGOs go ahead with the type of work they have been doing, including facilitating discussions among warring parties, some of whom may be deemed terrorist, or is that too risky?

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